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June 13. 2013 1:00PM

Know the Law: For privacy sake, seek divorce court alternatives

Q. My wife and I are active in our community and own a business that is fairly well known. After a 22-year marriage, we are getting a divorce. I am concerned about having our confidential information available to the public and competitors. What options are available to protect us?

A. The public nature of hearings and court files, invasive discovery, repeated requests for production of sensitive information and the duration, acrimony and expense of family litigation are valid concerns for business owners. Although some documents are automatically sealed, most pleadings and exhibits include personal and financial information. Arguments and testimony at hearings are also replete with such information. The reality is that private information is available to the public in a litigated divorce.

The fact that courts are not able to accommodate privacy concerns makes alternative dispute resolution options, such as mediation or collaborative law, more attractive for business owners, professionals and others who place a premium on privacy. In such a process, the entire divorce is often resolved outside of court and only the final documents are filed, leaving little of any consequence unsealed for public inspection.

In the event of a mediation or collaborative law settlement before the commencement of litigation, the parties are often excused from any need to appear in court, further preserving their privacy. Added benefits include the convenience of self-scheduling, cost savings, expediency of the process, creativity and control over the outcome, and the dignity and respect with which the participants are treated during the dissolution of their marriage. Notably, many such cases are resolved in a matter of months, as opposed to years in court, and private information remains private.

While divorce is a difficult process, in collaborative law and mediation the parties involved in the dispute will resolve it together, rather than as adversaries in a courtroom. As it relates to your question about privacy, this is an important point. Harm to personal or business reputations, release of sensitive or proprietary information and/or diminished work performance during a divorce often result from prolonged or particularly hostile proceedings.

In contrast, results obtained through alternative dispute resolution are comparatively fast, cooperative, inexpensive, durable and better accepted by the parties, as they, not the court, create the outcome. In your case, I suggest you check out collaborativepractice.com for more information.


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Margaret Kerouac can be reached at margaret.kerouac@mclane.com.


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Know the Law is a bi-weekly column sponsored by The McLane Law Firm. We invite your questions of business law. Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to knowthelaw@ mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.