Certainly not every high profile celebrity-type divorce is handled in a confidential manner, as evidenced by the public divorce of Frank and Jamie McCourt. However, by and large, high profile divorces are handled quickly and quietly, the best recent example probably being the divorce of Tom Cruise and Katie Holmes.
The choice of whether to have a publicly or a quietly resolved divorce is a choice any couple can make. It is not just the wealthy who can benefit from options to keep a messy divorce quiet.
People so often want their day in court, but to do this means all information filed with the court or anything said in open court, is on the public record. This means adult children can read their parent’s divorce file; creditors can find out where assets are located; business associates can learn about the personal lives of people with whom they are doing business. Thus while celebrities will reveal their secrets to the interested public by way of the media’s scouring of divorce court files, “average” people make details of their lives just as visible when they put those details in the family court records.
Many people believe entering mediation is enough to protect privacy, but this may not be the case. In California, mediation provides confidentiality to statements made during mediation, which keeps them from being made admissible in court, or being subject to discovery. There is no protection against information discussed at the mediation from being disclosed to third parties or from being shared in a public forum. This means, unless participants agree to do otherwise, parties, lawyers and even the mediator, are permitted to share information with the public about statements made during the mediation as well as about the settlement reached during mediation. Therefore, mediation does provide a forum for resolution outside the public purview of a courtroom, but it does not prevent the individuals involved from divulging salacious information.
Confidentiality and Non-Disclosure Agreements
If parties really seek a confidential process for resolving their dispute, then in addition to utilizing the mediation process, they should enter into a confidentiality or non-disclosure agreement. The agreement needs to be carefully drafted to define what is deemed confidential, who is bound by the agreement, how long the agreement will be enforceable and what can be included in a liquidated damages provision against a person who breaches the agreement. High profile parties may want to consider exceptions to the confidentiality agreement if they want to issue public statements or press releases regarding the dispute.
Divorce is a messy business and outsiders are always interested when it involves the CEO of a well known company, the owner of a business who works with celebrity clients, and of course, celebrities themselves. Legal proceedings in California, including divorce, are on the public record and the ability to seal a court file is not just incredibly difficult – it is nearly impossible. Therefore, parties who work together to maintain privacy for themselves, their children and their businesses will opt for a dual approach of mediation and a confidentiality or non-disclosure agreement. These options are not just for the rich and famous – they can be used by both sides in divorce if they choose to work together for maintaining individual and joint privacy.