Posted on October 22, 2022

How To Allege Embarrassing Facts In An Illinois Divorce

Getting divorced is not pretty. Usually someone in a divorce has done something really stupid, cruel or embarrassing. Even if the embarrassing behavior is exclusively your spouse’s actions, your spouse (and their behavior) is still a reflection upon you.

Sex, alcohol, drugs, lying and destitution are not fun subjects when they are about you and your family. Discussing these uncomfortable indiscretions in front of a room of strangers is not pleasant for anyone. Immortalizing the details of degrading behavior in writing for the court record is just as unpleasant.

How can you let the court know about shameful, upsetting and humiliating instances without also letting the whole world know that you and/or your spouse have this sordid history?

Attorney-Client Confidentiality In An Illinois Divorce

The first step is telling your divorce attorney the embarrassing details. Your divorce attorney cannot disclose the events, the details (or even allude to them) without your permission.

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

If the embarrassing facts are about your spouse, your spouse’s divorce attorney owes their client the same duty of confidentiality.

Your lawyer should get on the phone with your spouse’s lawyer and politely discuss the parties’ mutual interest in not disclosing these embarrassing details to the court.

You would be surprised how often these gentleman’s agreements are arrived at and adhered to in an Illinois divorce (by reputable lawyers who are aware of each other’s reputations).

If the disclosure of embarrassing details is inevitable, then precautions can be taken by either party.

Divorce Court Records Are Public In Illinois

If a document gets filed in an Illinois divorce court ANYONE can look at that document…and all the embarrassing details contained therein.

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)

In Illinois, court documents can be sealed. Sealing a court record means that no one has further access to the documents without the court’s permission. Getting an order to seal court records requires the following test:

“When a party seeks to restrict access to judicial records, the court must balance those interests supporting access, including the presumption — however gauged — in favor of public access to judicial records against those interests asserted for restricting access. In order to overcome the presumption of access, the moving party bears the burden of establishing a compelling interest why access should be restricted and that the protective order is drafted in the manner least restrictive of the public’s interest. The decision as to access is left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1072 (Ill. App. Ct. 1992) (citations and quotations omitted)

Once sealed, the case (or the individual documents) remain inaccessible until further order of court.

“Cases and documents within a case identified as impounded, sealed, secured or otherwise confidential in the circuit court shall remain as such when filed in the reviewing courts, and the parties of record shall have the same level of access, if any.” Ill. Sup. Ct. R. 371

Sealing a court file is all well and good for after-the-fact embarrassing details that have been resolved by the court after months (or years) of litigation. What is to be done with an active court file with active embarrassing allegations and prying eyes taking screenshots from the clerk’s website?

Motion For Leave To File Under Seal

When scurrilous allegations are about to be made, a party in an Illinois divorce can do something quite gallant…they can request that their motion alleging the embarrassing behavior be sealed in advance.

Your divorce judge may not even know that they have the power to seal records in advance…but they do. “[A] court has certain inherent power to control its records, and thus, the right to inspect public records is not absolute.” Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776 (1st Dist. 1981).

Your Illinois divorce judge needs to know that “the right of [court record] access is not absolute. In [the] Nixon [case], the [United States] Supreme Court stated that ‘[e]very court has supervisory power over its own records and files, and access [may be] denied where court files might[ ] become a vehicle for improper purposes.’ Nixon, 435 U.S. at 598, 98 S. Ct. at 1312, 55 L.Ed.2d at 580. Thus, whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231 (2000).

Filing a motion for leave to file a sealed motion is such a finesse move. Approaching the court and stating affirmatively that you have horrible things to say about the other party but refuse to say those horrible things without preserving everyone’s privacy…makes you look like the good guy.

Furthermore, keeping a juicy secret (to be later revealed) is sure to get a judge’s complete attention both at the time of the request for sealing and when you finally are allowed to present the sealed motion before the court.

If the motion’s sealed details are truly salacious, the motion can probably be brought before the court on an emergency basis. Emergency motions are heard on an immediate basis. So, telling a judge, “I have something so juicy to tell you but I can’t right now…unless you deem my motion an emergency”…is an excellent way to get that motion heard immediately.

Every bit of information your divorce lawyer receives is both a shield and a weapon. Protecting embarrassing information can be done at the same time that embarrassing information is weaponized…if your divorce lawyer knows how.

If you’d like to safeguard the details of your life while using them for strategic effect in your divorce, contact my Chicago, Illinois family law firm today to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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