A divorce is not something most people are proud of much less something they want to advertise. People want to keep their private life…private. Yet, a divorce is a public record. Also, the two parties to a divorce must disclose everything the other party requests. What that other party does with that information can sometimes…not be flattering. So, how do we keep sensitive information private in an Illinois divorce?
Keeping Discovery Private In An Illinois Divorce
A spouse can ask for virtually anything from the other spouse for the purposes of building evidence in a divorce case.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action… including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts” Ill. S. Ct. R. 201(b)
This is everything! Bank statements. Credit card statements. ATM withdrawals. Potentially embarrassing stuff.
There is discoverable information that’s private for the right reasons. Examples are private contracts between a party to a divorce and their business partners. Some business documents could potentially be trade secrets that a competitor would want to look at.
In order to prevent the dissemination of these documents by one spouse during the discovery process, the Illinois Supreme Court Rules have various protective measures.
“Protective Orders. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. S. Ct. R. 201(c)(1)
An Illinois divorce judge will almost always grant a protective order. After all, who else should be looking at discovery documents except for the spouse and their attorneys?
If you’d like to enter a protective order you don’t even need a petition 99% of the time, the judge will grant it and the opposing counsel should be reasonable and just agree to the protective order’s entry.
Below is the text of my standard protective order
“PROTECTIVE ORDER
This cause coming on to be heard upon by agreement of the parties for entry of an Protective Order (“Order”), pursuant to Supreme Court Rule 201(c)(1), with respect to certain documents and information that the Respondent, ____________ and their counsel will be receiving relative to the Petitioner _________________ interests in ___________________ , pursuant to discovery requests issued on their behalf, and this Court being advised in the premises;
IT IS HEREBY ORDERED:
1. Unless the Court otherwise orders, all documents relating to _______________ which are produced by __________________, or any agent on _________________behalf, whether provided or delivered before or after the entry of this Order, may not be disclosed directly or indirectly, orally or otherwise, in whole or in part, to any person by _______________ or their counsel, except that documents may be disclosed to the following persons in connection with the prosecution or defense of this action:
A. Counsel for the respective parties and the parties to this action;
B. Employees of counsel, including but not limited to paralegal employees assigned to assist counsel in connection with the prosecution or defense of this action; or
C. Accountants or other professionals or their employees who may be retained by __________________or their counsel to analyze the information and assist in the preparation for trial or testify at trial.
2. Each person (other than counsel or employees of counsel in this case) to whom any documents produced pursuant to this Order is disclosed shall, prior to the receipt thereof, be specifically advised by counsel for ____________that the documents and any information contained therein are subject to this Order and may not be disclosed directly or indirectly, orally or otherwise, to any other person. Both Counsels shall secure from each such person an agreement in writing to be bound by the provisions of this Order. Both Counsels shall remain personally responsible for insuring that his/her employees and paralegal assistants comply with this Protective Order. Both parties, their counsels or any other person to whom any document or contents thereof is disclosed from the obligations set forth herein are enjoined from contacting any and all federal, state or municipal authorities regarding any of the documents produced herein.
3. Unless the Court otherwise orders, any portion or portions of documents or other papers filed by either party in this action which disclose any documents relating to ___________, shall be filed in this action (if filed at all) in sealed envelopes on which there shall be endorsed the title of the action and a statement substantially in the following form:
CONFIDENTIAL: This envelope contains documents which are subject to a Protective Order entered by this Court. This envelope shall not be opened or the contents thereof revealed except upon order of the Court. Violations of such Protective Order shall be treated as a basis for contempt of court. Such documents or papers may be released only upon further Order of the Court.
4. Upon termination of this action, counsel for _____________shall promptly return to counsel for ______________ all copies of all documents produced by _____________, or any agent on ____________’s behalf, unless the Court otherwise. Termination of this action shall not relieve _______________, her counsel, or any other person to whom any document or contents thereof is disclosed from the obligations set forth herein”
Keeping Your Finances Private In An Illinois Divorce
Every divorce in Illinois has a financial affidavit filled out and exchanged unless the parties waive this most preliminary of requirements.
An Illinois financial affidavit tells whomever reads it A LOT about your financial life. What’s more, the financial affidavit’s instructions require the following: income tax returns, pay stubs and other proof of income, bank statements and other supporting documents.
Your financial affidavit and the supporting documents should never become public information. Cook County Court Rules require that the financial affidavit remain private information.
“The completed “Financial Affidavit” should not be filed with the Clerk of the Circuit Court, unless ordered by the court.” Cook County Rule 13.3.1(d)
Keeping The Details Of Your Divorce Private In Illinois
Many things cannot be filed with the court no matter what.
“In civil cases, personal identity information shall not be included in documents or exhibits filed with the court” Ill. Sup. Ct. R. 138(a)
“Personal identity information, for purposes of this rule, is defined as follows:
(1) Social Security and individual taxpayer-identification numbers;
(2) driver’s license numbers;
(3) financial account numbers; and
(4) debit and credit card numbers.
A court may order other types of information redacted or filed confidentially, consistent with the purpose and procedures of this rule.” Ill. Sup. Ct. R. 138(b)
Of course, it becomes necessary to refer to financial accounts numbers and debit and credit card numbers for the purposes of allocating marital and non-marital property. In such instances, referring to the last four numbers will not violate the rule.
“A redacted filing of personal identity information for the public record is permissible and shall only include:
(1) the last four digits of the Social Security or individual taxpayer-identification number;
(2) the last four digits of the driver’s license number;
(3) the last four digits of the financial account number; and
(4) the last four digits of the debit and credit card number.” Ill. Sup. Ct. R. 138(c)
The reason why we don’t file documents with the county clerk that should stay private is that everything in the clerk’s file is part of the public record.
“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.” 750 ILCS 105/16(6)
Illinois doesn’t have a statute or a Supreme Court Rule that allows for the sealing of a court file but an Illinois court has the authority to seal a file as part of their inherent power to control the court records they oversee. Skolnick v. Altheimer & Grey, 191 Ill.2d 214, 231 (2000)
But just because you have an embarrassing detail in your divorce case does not mean you get to seal all of the documents related to your Illinois divorce. “Judicial proceedings are not closed whenever the details are titillating, and open only when the facts are so boring that no one other than the parties cares about them.”In Re Krynicki 983 F.2d 74, 78 (7th Cir. 1992)
You can ask an Illinois divorce court to seal your file if you have 1) A compelling interest that favors restricted access AND 2) the protective order is drafted in the manner least restrictive vis-a-vis the public interest. In Re Marriage of Johnson, 232 Ill. App. 3d 1068
In sum, just ask for the judge in your divorce to seal your divorce file. The worst the judge can do is say “no.”
What If Your Ex Violates Your Privacy In An Illinois Divorce?
In the midst of a divorce, parties enjoy bringing up “dirty laundry” in official court pleadings. In America, you can say whatever you want…so long as it is true. The first amendment protects any statement that can “reasonably interpreted as stating actual facts.” Milkovich v. Lorain Journal Co., 497 US 1 – Supreme Court 1990
To keep those facts from coming out, a protective order is usually required. That protective order can be enforced before the divorce case is complete and after the divorce case is complete.
“A court’s inherent authority to enforce its orders gives it jurisdiction to enter a rule to show cause [for contempt if a court order is violated]” Mehalko v. Doe, 2018 IL App (2d) 170788
A possible defamation claim is weak tea compared to a court’s almost unlimited contempt power to enforce any privacy constraints the court has previously ordered.
Other Ways To Keep Your Divorce Details Private In Illinois
A divorce in Illinois typically involves three final documents.
The Judgment For Dissolution of Marriage is a very brief description of the facts followed by an order granting the divorce, allowing the wife to return to her maiden name, establishing future jurisdiction and incorporating the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities into the Judgment of Dissolution.
The Marital Settlement Agreement is the document that outlines all of the financial details of the unwinding of your relationship with your spouse.
Allocation of Parenting Time and Parental Responsibilities is the document that describes your relationship as a parent with your children and their other parent in great detail.
The other two documents, the the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities can simply be referred to in the Judgment for Dissolution of Marriage. The mere words in the Judgment For Dissolution of Marriage that the other documents “are incorporated by reference” are enough.
Those judgments incorporated by reference can then include confidentiality clauses which prevent either party from sharing the contents thereof.
“[T]here is a presumption of validity and enforceability attaching to settlement agreements which include confidentiality provisions.” Jordan v. Knafel, 355 Ill. App. 3d 534, 540 (Ill. App. Ct. 2005)(and, yes, it is that Jordan)
Please be sure that your divorce lawyer safely preserve copies of these very important detailed documents.
Personally, I am a family law attorney and not a personal librarian. I return your entire physical case file to you at the end of your case or destroy your physical case file. I keep an electronic copy of your file but provide no guarantees as to that electronic copy. A divorce decree is like a last will and testament. Keep it in a drawer that you hope you never have to open.
If you’d like to talk to a divorce attorney in Illinois who values his clients’ privacy, contact my Chicago law office today to have a confidential and private free consultation with an experienced Chicago divorce lawyer.
