In Massachusetts, in nearly every type of case, we enjoy what is called an “open court system”. Our court rooms are open to the public, as are the corresponding court files, so it’s not always easy to make a divorce file private. There are, however, some types of cases which are automatically closed, such as adoption cases. Beyond that, there are certain types of court documents in open cases, in which the documents are automatically made private, by the process of impoundment.
When a court file or document is made private, it is impounded, meaning it becomes inaccessible to the public. The public would not be allowed into a closed hearing and impounded court files are kept separately away from reach of the public. The most common example of an automatically impounded document in a divorce case is each parties’ financial statement. The financial statement is the document that sets forth each party’s finances: income, assets, expenses, and debts. The financial statements contain critical information for resolving the divorce, disclosure of which is necessary to make any divorce settlement 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. There may be other documents and other information the parties wish to keep private, although also necessarily filed with the court. For example, a party and/or his or her lawyer may have found it imperative to reference bad behavior of the other parent in a custody proceeding when completing the complaint or a motion for temporary custody.
Let’s say, for example, a parent suffers from alcohol abuse and the lawyer for the other parent felt it necessary to highlight this in the complaint. There may be egregious behavior of that parent perpetrated while intoxicated and there may have been a reasonable basis to include such information in the complaint or motion. However, now that the issue has been resolved a party may wish it not be there to avoid other people, including the children, from seeing the information in the court file.
As a starting point, I would highly suggest the lawyer filing a document with scandalous content consider alternative options. There is likely no need to include scandalous content in a writing when the same information can be conveyed in a hearing by testimony or through other evidence. The important step is getting the information before the judge. The lawyer filing documents with scandalous content may feel it necessary to put the alleged facts before the judge before the hearing begins, but when the dust settles, it’s unlikely either party will want such facts open to the public.
However, let’s say, for whatever reason, the decision is to include content in the document and we later wish the court to impound. The best way to go about doing this is to file a motion with the court to impound the document in question, along with the requisite affidavit. The documents in question should not be filed at that time because the judge may choose to deny the request for impoundment and there will be no way to get the documents out of the court file. So, if the document “must” be filed, get the court’s approval to impound the document first. File a motion and include a proposed order with the requisite findings under the Uniform Impoundment Procedures Rules. Another important point here is that the motion to impound, nor the order, will be impounded unless you separately request and obtain approval. This is important because, if in your motion and proposed order, you simple repeat all the information at issue, it will remain open to the public if not also impounded and the whole purpose of impounding the original document will be undermined.
Sometimes, probably more often than in the previous example, an opposing party or lawyer will file something that should have been impounded but wasn’t. Now that document is in the court file and accessible to the public. There is a court procedure under the uniform rules to request that document be impounded as well, although this should avoided when possible because the judge could 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.
There are many other examples, of course, of instances in which a file need be impounded. These examples should give you a flavor of how it works and illustrate the importance of being careful about what is filed. When a case has sensitive information in which the parties may not want the public to see, a confidentiality agreement between the parties related to the litigation may make sense and should be considered early in the case.
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.