Massachusetts has an “open court system” for nearly every type of case. Our courtrooms and court files are open to the public. Therefore, making a divorce file private is challenging. Some types of cases, such as adoption cases, close automatically. The court also makes certain documents private in open cases through impoundment.
When the court makes a file or document private, it impounds it. This means the public cannot access it. The public cannot attend a closed hearing. The court keeps impounded files separate and out of the public’s reach. The most common example of an automatically impounded document in a divorce case is each party’s financial statement. The financial statement is the document that sets forth each party’s finances: income, assets, expenses, and debts. Financial statements provide crucial details for divorce resolution. Their disclosure is essential to ensure any settlement is legally binding. But the right to privacy of this sensitive information outweighs any public need for the information. Further, making such information publicly available and easily accessible to the public could hurt the financial positions of each party.
Impoundment of court files goes beyond financial statements in a divorce. Some documents and information filed with the court may be private. For example, a party or lawyer may need to reference the other parent’s bad behavior in a custody case when filing a complaint or motion for temporary custody.
For example, if a parent struggles with alcohol abuse, the other parent’s lawyer may highlight it in a complaint. The parent may have engaged in egregious behavior while intoxicated. In such cases, there could be a reasonable basis to include this information in a complaint or motion. However, once resolved, a party may want it removed to prevent others, including children, from seeing it.
As a starting point, I would highly suggest the lawyer filing a document with scandalous content consider alternative options. Scandalous content may be unnecessary in writing when testimony or evidence presents the same information during a hearing. The important step is getting the information before the judge. A lawyer filing scandalous documents may feel the need to present alleged facts to the judge before the hearing. However, when the dust settles, neither party is likely to want those facts exposed to the public.
However, If we decide to include content but later seek impoundment, we must file a motion with an affidavit. Do not file the documents at that time. If the judge denies impoundment, there will be no way to remove them from the court file. If you “must” file the document, first obtain the court’s approval to impound it. File a motion and include a proposed order with the requisite findings under the Uniform Impoundment Procedures Rules.
You must request approval to impound the motion and order. Without your request, they will not be impounded. If your motion and order repeat the sensitive information, they stay public unless impounded, defeating the purpose of protecting the original document.
An opposing party or lawyer might file something that should have been impounded but wasn’t. This occurs more frequently than in the previous example. Now that document is in the court file and accessible to the public. You can request the court to impound the document under the uniform rules. However, avoid this when possible. The judge may deny the request. Lawyers seeking to have the document their counterpart’s filed impounded should first bring the matter to the attention of opposing counsel. Opposing counsel, not the lawyer who found the error, should really be the one to correct the issue. The procedure takes time and, correspondingly, money and so while you should be cooperative, the party who made the mistake should really be the one to fix it. Ideally, the parties can enter into a joint motion to impound this content.
Sometimes parties will run into the situation where the other party seeks to impound a document or information in the court file and the other party disagrees with the impoundment. In that situation, the disagreeing party can file an affidavit in opposition to the impoundment request in that scenario and the judge will consider the arguments of each.
Many other examples exist where a file needs to be impounded. These examples illustrate how it works and emphasize the importance of careful filing. If a case involves sensitive information, the parties may not want the public to access it. In such cases, consider a confidentiality agreement early in the process.
If you have a case in which sensitive information was or may be filed with the court and you feel such information should be kept from the public eye, I recommend you speak with a divorce lawyer who is knowledgeable about keeping court files private in divorce and family law cases. To schedule a free consultation with a knowledgeable divorce attorney in our office, call 978-225-9030 during regular business hours or complete a contact form here and we will contact you back at our earliest opportunity.