In our blog we will try to provide you with general information regarding family law, as well as updates in important cases and statutes dealing with family law in New Hampshire. This is not to be construed as legal advice. Every case is unique and small facts can make a difference.
What Is Considered Private In a Courthouse Divorce File?
As evidenced by the existence of websites such as PerezHilton and TMZ, the public has a thirst for gossip. Divorces among celebrities make headlines, like the recent divorce of Nick Cannon and Mariah Carey. Many of us will not achieve celebrity status during our lifetimes, but small town rumor mills can nonetheless be ruthless. If you are going through a divorce, then you should be aware of the rules governing public access to your divorce file. Any person can stroll down to the local courthouse and review all of the documents associated with their neighbor’s ongoing custody battle or a friend’s divorce proceedings.
The notorious case in this particular issue is the 1992 Petition of Keene Sentinel dispensed by the New Hampshire Supreme Court. During a vicious 1990 political battle for New Hampshire’s Second Congressional seat, the Keene Sentinel decided to seek access to one of the candidate’s, Charles Douglas III, divorce records. A clerk issued only a few of the divorce records to the Sentinel – citing privacy concerns. The Sentinel subsequently filed a lawsuit, and Charles Douglas III intervened, requesting that the Superior Court dismiss the Sentinel’s lawsuit. The suit was ultimately denied.
The Keene Sentinel filed an appeal, stating that disclosure should have been granted pursuant to New Hampshire’s “Right to Know” law (RSA chapter 91-A). The New Hampshire Supreme Court determined that an individual involved in divorce proceedings cannot have their records sealed for the sole purpose of general privacy concerns. Furthermore, the Supreme Court ruled that before a judge can order documents to be sealed, he or she must first determine that no other viable alternative exists, other than nondisclosure. Should a trial judge decide to seal such documents, they must do so utilizing the least restrictive method available to secure the privacy of both parties’ rights.
In general, this ensures that pleadings, orders, and other relevant documents placed in the file must be open for public viewing. The single exception is financial affidavits. With this particular document, a party is required by the court system to fill out and submit a sworn financial statement that details all debts, property, and income. This document usually contains highly private information, like pay stubs, social security numbers, and bank account information. Current New Hampshire law dictates that financial affidavits for nonparties must be kept private. Financial affidavits created for use in annulments, legal separations, and divorce proceedings must remain confidential to all nonparties. However, an individual who would not normally be granted access to such information can utilize Family Division Rule 1.30 to request access to such information.
The case of New Hampshire vs. The Associated Press provides some context as to how financial affidavit confidentiality rules work. The ruling in this case was issued by the NH Supreme Court in December of 2005. Financial affidavits used in divorce proceedings were accessible only to all parties involved in the proceedings and the lawyers on record. The Associated Press filed a motion declaring this law to be unconstitutional. In their argument, they stated that this law violated the general public’s right to access court records under New Hampshire’s state constitution. Furthermore, in their opinion, this rule created an unconstitutional restraint regarding freedom of speech per the Federal constitution. Ultimately, the trial court ruled that this law was not, in fact, unconstitutional, and The Associated Press’s lawsuit was subsequently dismissed. The AP quickly filed an appeal, stating that the court was in error in deeming the law constitutional.
The Supreme Court upheld the trial court’s ruling, declaring the law to be constitutional. In their opinion, the Court stated that, although the general public has a legal right to access court documents and government documents, the legal right is not without limits. The Supreme Court stated that “the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified”. In this statement was included the compelling interest of preventing the exposure of divorce parties for fraud and identity theft. It is important to note that the Court purposefully kept their ruling narrow, applying it only to sealed financial affidavits.
Upon request, the Court may consider keeping case related materials confidential for collateral cases that have already been deemed confidential in accordance with New Hampshire law. This list of materials includes DCYF, neglect/abuse cases, juvenile criminal records, adoption, and termination of parental rights documents.
To learn more about divorce document confidentiality or for assistance with your own divorce proceedings, please contact one of our experienced NH divorce lawyers today.
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