How Can I Seal My Divorce File?
As my Virginia family law practice has matured over the years, I’ve been fortunate to advise a number of “high profile” clients through messy family law matters. My clients have included radio and television personalities, professional athletes, individuals with political aspirations, and various Washington Area “movers and shakers.” For better or worse, I have also advised a number of clients in matters involving “deviant” sexual behavior, acts of extreme violence, and other downright odd or salacious activities. In such matters (and others), clients inquire how, if at all, they can keep the details of their divorce private and shielded from the public’s eye. How can I seal my divorce file?
Unfortunately, Virginia adheres to a presumption of openness. Virginia Code §17.1-208 creates a “strong presumption in favor of public access to judicial records,” including judicial records relating to divorce. To overcome that presumption, a party “must bear the burden of establishing an interest so compelling that it cannot be protected reasonably by some measure other than a protective order.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 259 (1988).
In 2019, the Honorable Judge David Oblon of the Fairfax County Circuit Court decided Falkoff v. Falkoff, a case that examined how litigants might establish a sufficiently compelling interest to warrant sequestering or sealing a file. The Judge offered “good reasons” and “bad reasons” a party might offer to persuade a court to seal his/her divorce file.
Among the “bad reasons” he cited were rationales many lawyers might be initially inclined to offer. “Bad reasons” to seal a file included: (i) an agreement by or desire of the litigants to seal the file; (ii) unparticularized concern of damage to a litigant’s professional reputation, emotional damage, or financial harm; (iii) particularly salacious allegations; (iv) a litigant’s public figure status; (v) publicity surround the case; and (vi) the malicious use of court records by a party. Broadly, the Court concluded these reasons by themselves were likely insufficient to outweigh the public’s interest in having open access to judicial files.
Among the “good reasons” he cited to justify sealing a divorce file were the following: (i) particularized proof of harm; (ii) disclosure of privileged materials, personally identifiable information, and trade secrets; (iii) items being sealed that have little relevance to the merits of the case; (iv) protection of children; and (v) demonstrably false information. A key take-away from Judge Oblon’s decision is that “good reasons” require specificity. Thus, the argument is not “Your Honor, both parties agree and my reputation will be harmed by the divorce complaint,” but instead “I lost a specific contract or opportunity as a result of the allegations in my divorce file and it cost my family $10,000.00.” Similarly, it’s not “My spouse said some nasty things that will embarrass me and my children,” but instead “My spouse disclosed my social security number and specific trade secrets that will ruin my business” and “My spouse falsely accused my children of perpetrating a heinous act and, as a result, my children are being ostracized at school and their grades are falling.”
The decision to seal a file is made in the sound discretion of the court. If you have questions about whether your divorce file can be sequestered or sealed and shielded from public view, feel free to reach out to one our attorneys.