Jon W. Hedgepeth (Photo: John Disney/ALM) Jon W. Hedgepeth of  Hedgepeth, Heredia & Rieder, Atlanta (Photo: John Disney/ALM)

 

The recent details regarding the custody agreement between Angelina Jolie and Brad Pitt bring the issue of divorce agreements and privacy to the forefront. When you hear the phrase “their divorce papers were sealed,” one might believe the information is private. But it takes all parties of the agreement to keep the information quiet.

Private divorces are not only for celebrities or public figures. In reality, private divorces happen among “ordinary people” more often than you may think. (Of course, not as often as the parties involved would like.) But requesting that a divorce settlement agreement stay private is more than just a simple question to the court. It’s a process. And the parties involved don’t always get what they want.

The vast majority of divorces end by decision of the two parties involved, meaning you and your soon-to-be-former spouse reach a signed settlement agreement. Once both of you sign the agreement, it is filed with the court. The attorney for the moving party (the person who filed the motion) then submits a final judgment and decree of divorce to be signed by the judge.

The final decree contains the magic language that confirms the two of you are officially divorced. It also states, “The settlement agreement signed by the parties and filed with this Court is hereby made the Order of this court.” This gives the agreement, which up until now has been merely a contract, the legal equivalence of a court order.

In the case of the Jolie-Pitt case, details of the custody arrangements allegedly came from an unnamed source talking to the media. Jolie was allegedly upset that certain details had been leaked to convey a more favorable perception of Pitt.

Why Would a Couple Want Privacy?

Clients often request their settlement agreement be kept private. The typical reason is most agreements contain extremely personal information about both of you, your children and your finances.

The reason for wanting privacy could be as simple as an embarrassing aspect of the agreement that outsiders simply do not need to know. But there might be specific reasons for wanting to keep such information private including:

  • A party is required to take and pass drug or alcohol tests prior to exercising parenting time;
  • The parties have financial terms they wish to keep private;
  • One of you may be running for public office and wouldn’t want information to fall into the hands of potential constituents or opponents;
  • One of you—or your child—might be a victim of a crime.

The Rules Surrounding Privacy

The Uniform Rules of Superior Court mandate that all court records are public and are to be available for public inspection. However, the court can rule to keep records private, if it finds possible harm to the person seeking privacy outweighs the public interest in keeping all matters public. That said, there are times when the court is more likely to rule on the side of keeping the records private.

Matters involving the safety of those involved, their children or others, or matters involving public figures which could potentially affect business transactions or stock prices, often do survive this scrutiny.

There are provisions in the law to allow the omission of certain information from a filed document, such as Social Security numbers, account numbers or children’s birthdates.

The gist of this privacy conversation is there must be a strong reason for a judge to seal an agreement that outweighs the public’s right to open access. Mere embarrassment of a party is not likely to be enough of a reason for privacy.

There have been many instances where parties enter into an agreement, sign it and notarize it but intentionally fail to file it. In that instance, the final decree will state something to the effect of “The parties’ Settlement Agreement (hereinafter the ‘Settlement Agreement’), is approved in its entirety and is incorporated into this Final Judgment and Decree as is fully set forth herein. The Settlement Agreement shall not be filed with the Court but shall remain accessible to the parties and the Court and its staff and the parties may reference same in pleadings as necessary to enforce the terms of the Final Judgment and Decree.”

It is important to note that there is no supporting statutory or case law that allows the agreement not to be filed; however, a judge has the discretion to not file for some of the previously mentioned reasons.

When the court does not find reason for sealing the settlement agreement, it becomes the responsibility of the parties to agree upon what can and cannot be said about the arrangement. The court cannot monitor the spoken arrangement. In the custody case involving Brad Pitt and Angelina Jolie, the allegedly leaked details show an arrangement made between parents and their representatives that was not meant to be shared with the public. While they are public figures, the pain and embarrassment of a broken agreement between two private parties can be just as stressful for everyone involved.

It is for this reason that it is important for all parties involved to realize the repercussions—from a financial, personal and family perspective—of breaking a privacy agreement.

Jon Hedgepeth of Hedgepeth, Heredia & Rieder in Atlanta has practiced family law almost exclusively for more than 25 years. He also is a past president of the Atlanta Bar Association Family Law Section.