Courthouse Divorce File: What's Private?

“All human beings have three lives: public, private, and secret.” 
― Gabriel Garcí­a Márquez, Gabriel García Márquez: a Life

The public thirsts for gossip, apparent in websites like TMZ and Perz Hilton. Celebrity splits are big news such as Tom Cruise and Katie Holmes to Mariah Carey and Nick Cannon. While most of us do not enjoy celebrity status, the small town rumor mill can be just as virulent as celebrity gossip. Divorce litigants should beware the rules regarding public access to their divorce file. Anyone can head down to the local courthouse and view all the happenings in the neighbor's divorce or co-worker's custody battle.  

The prominent case on this issue is the Petition of Keene Sentinel issued by the New Hampshire Supreme Court on August 27, 1992. During the 1990 political campaign for New Hampshire’s Second congressional seat, The Keene Sentinel sought to gain access to one of the incumbent’s, Charles Douglas III’s divorce records. The clerk granted the Keene Sentinel only some of the divorce records, citing privacy concerns. The Keene Sentinel brought suit and Charles Douglas III sought to intervene, asking the Superior Court to dismiss the suit. The Superior Court ultimately denied the Keene Sentinel’s request.

The Keene Sentinel appealed, arguing that “disclosure should have been permitted pursuant to RSA chapter 91-A, the Right to Know Law.” The Supreme Court held that a party in a divorce proceeding cannot have the records sealed simply for the sake of general privacy concerns.  The Court held that “[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists.” If a trial judge does make such a determination, it must use the least restrictive means available to secure the parties’ privacy rights.

This generally requires that the orders, pleadings and other materials in the file are open to the public for viewing. An exception is a financial affidavit. A party is required by the court to complete and submit a sworn financial affidavit, detailing all income, property and debts. This document usually contains very personal information such as social security numbers, bank information and paystubs. Family Division Rule 2.16 and RSA 458:15-b requires financial affidavits to be confidential for non-parties. In practice, this means that the court file contains an envelope which the clerk will remove if you are not a party to the case. Financial affidavits filed in divorce, legal separation, annulment, or parenting petition cases shall be confidential to non-parties. Access to such financial affidavits shall be pursuant to Family Division Rule 1.30. However, a person not otherwise entitled to access may file a motion under Family Division Rule 1.30 to gain access to the financial affidavit. 

The Associated Press v. NH gives some context to the rule regarding financial affidavit confidentiality. The New Hampshire Supreme Court issued its holding in this case on December 30, 2005.   After RSA 458:15-b took effect on August 10, 2004, which, inter alia, made financial affidavits in divorce proceedings only accessible to parties to the proceeding and their attorneys of record, the Associated Press filed suit claiming the law was unconstitutional. The Associated Press argued that the law “violated the public’s right of access to court records” under the State Constitution, and that it was an impermissible restraint on freedom of speech per the State and Federal Constitutions.  The trial court determined that the law was not unconstitutional, and dismissed The Associated Press’ suit. The Associated Press appealed the trial court decision, arguing that the trial court erred in finding that the law was constitutional.

 The Supreme Court agreed with the trial court, and finding RSA 458:15-b constitutional. The Court ruled that although the public has a right to access government documents, including court documents, the right is not unlimited.  It opined that "the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified,” which included the compelling interest to prevent exposing divorce litigants to identify theft and fraud. The Court’s ruling was narrow, however, and only applied to keeping financial affidavits sealed. 

In general, the Court may upon request consider keeping confidential case-related materials for collateral cases that are already confidential pursuant to New Hampshire law. These include termination of parental rights, adoption, juvenile criminal records and abuse/neglect cases and DCYF records.  

 

Why You Need a Coach in your Collaborative Divorce

New Hampshire collaborative practice employs an interdisciplinary model, which is fancy for saying that the professional team includes attorneys, a coach and a financial neutral. When the topic of hiring a coach comes up, I sometimes receive this feedback:

  • Why do we need a coach?
  • I already have a therapist, isn't that the same thing?
  • It's another expense in the process. 
  • Let's see how it goes without one and we can always hire one later. 

I intended to write a thorough and thoughful post about the need for a coach, and then found this article Do You Really Need a Divorce Coach in the Collaborative Process? by Helene Taylor. I really can't say it better myself, and it answers all the frequently asked questions. It's a must read if you are considering a collaborative divorce. I especially love her explanation of the difference between a therapist and a divorce coach:

A therapist is someone you bring your luggage to and she helps you open it up and decipher the contents; a divorce coach is someone you bring your luggage to and, without opening it, she helps you carry it across the street.

From my attorney perspective, a coach helps me do my job better and reach the end result quicker. The coach, who is far better trained in the emotional aspects of a divorce than I am, can facilitate the emotional discussions and keep lines of communication between the parties open so that the legal discussions can be more productive.

For more information about collaborative divorce, check out the information video from the International Academy of Collaborative Professionals. You can also download a free Collaborative Divorce Knowledge Kit

New Hampshire same-sex divorce: What you need to know

Please check out my recent You Tube video on the topic of same-sex divorce in New Hampshire. We'll review length of marriage considerations, parenting rights for same-sex couples, and special property distribution issues in divorces for same-sex partners.

Elter-Nodvin v. Nodvin: Change in beneficary does not violate anti-hypothecation order

The New Hampshire Supreme Court recently issued an interesting opinion in the matter of Elter-Nodvin v. Nodvin. It is not a traditional family law case, ie divorce or parenting, but rather a constructive trust matter. Nevertheless, the holding has ramifications in the family division.

The Facts

Husband files for divorce from wife. Family court issues an anti-hypothecation order, which restrains the parties “from selling, transferring, encumbering, hypothecating, concealing or in any other manner whatsoever disposing of any property, real or personal, belonging to either or both of them.” While divorce is pending, husband changes his beneficiary on his life insurance and retirement accounts from Wife to their children. Husband dies before divorce is accomplished. Wife sues children in Superior Court seeking to impose a constructive trust to recover the proceeds from the life insurance and retirement accounts. Superior Court dismisses wife’s claims against children.

The Appeal

The wife appealed the trial court’s decision dismissing her petition, arguing that the husband’s change in beneficiaries from wife to children violated the anti-hypothecation order and required the imposition of a constructive trust in favor of the wife over the proceeds. The wife also argues that the husband violated the order when he changed beneficiaries because those actions hindered the trial court’s ability to distribute the assets according to the purpose of the anti-hypothecation order.

The Holding

The court holding is interesting, and contrary to the conventional wisdom that changing beneficiaries on insurance or retirement accounts violated the anti-hypothecation order. Instead, the Supreme Court declared that the plain language of the anti-hypothecation order that required the parties to refrain from disposing of property allowed the husband to make the changes to the beneficiaries, and in no way impeded the family division from making an order requiring the husband to name the wife as beneficiary. The Supreme Court reasoned that the wife did not possess a vested property interest, and absent a property interest, there could be no violation of the order. Therefore, the wife could not base the imposition of a constructive trust on the alleged violation of the anti-hypothecation order.   

The Takeaway

At a temporary hearing, or in a temporary agreement, it is important to secure an order that each party shall name the other as the beneficiary on their existing life insurance, retirement plans, and/or survivor benefits and shall make no changes to those designations while the divorce is pending.