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Can I Prevent My Court Divorce File From Going Public

Pursuant to R. 1:38-11, there must be good cause for sealing a file, and the moving party bears the burden of proving that good cause exists by a preponderance of the evidence. Pursuant to the Rule, good cause exits when:

1. Disclosure will likely cause a clearly defined and serious injury to any person or entity; and

2. The person’s or entity’s interest in privacy substantially outweighs the presumption that all court and administrative records are open for public inspection to R. 1:38.

The Family Part rules, and more specifically, R. 5:3-2(b), indicate the same good cause standard should apply.

It should be noted that the rule was changed from previous years. The 1990-1992 family practice committee recommended that the long-standing rule that all family court matters be confidential, be changed, as same was out of step with the national legal community which moved towards open access.

There appears to be just one seminal case on the issue, and it is a chancery division case authored by Judge Sabatino, who now sits in the Appellate Division. In Smith v. Smith, 379 N.J. Super. 447 (2004), the movants were grandparents who sought to have a divorce matter sealed because of allegations made by their son-in-law relative to them being alcoholics. In that case, the Court did not seal the records. It stated, “the desire of movants to preserve their reputations, and to prevent the dissemination of what may prove at the end of trial to be unsupported innuendo, is entirely understandable. No one wants to be smeared in a public forum. On balance, however, those personal interests do not suffice on the present record to overcome the strong presumption of open judicial proceedings.” Id. at 446. The Court made this decision even considering that the grandparents were non-parties who did not choose to be involved in, and were not parties to the action.

The Court also cited a 1975 NJ Supreme Court Case wherein a prominent lawyer sought to have a reported case concerning his marriage cited with initials versus full names due to facts concerning adultery, and the court declined in that matter, indicating, “While we continue to believe that the use of initials in order to disguise the true identity of litigants serves a legitimate end where the interests of minor children are concerned, as well as upon other miscellaneous but rare occasions, we do not approve a resort to this practice where the effort is to throw the protective cloak of anonymity over a successful and well-known member of the bar, as would appear to have been the case here. Stern v. Stern, 66 N.J. 340, 343 (1975).

Our firm can work with you to come up with creative solutions to keep the details of your case out of court, through mediation and arbitration.

John E. Clancy, Esq.