The answer to this question depends on several facts:
- Which divorce process you and your spouse have chosen
- The “venting” factor
- The “integrity” factor
- The use of enforceable, legal mechanisms designed to maintain confidentiality of sensitive information
Hands down, the Collaborative Divorce process affords the most confidentiality and privacy, which are different concepts. The collaborative meetings are held in private conference rooms, not in the hallways of the courthouse, not in the courtroom with the public looking on. Only the collaborative teams are allowed in the room and there is no record made other than the notes taken by the attorneys, which are private and non-discoverable, that is to say, confidential. The parties sign a contract which governs disclosure of events which happen during a collaborative meeting and the confidentiality of the information shared during the process, especially in paper or electronic form. But even in the Collaborative Divorce process, people tend to “vent” to friends and family about perceived and real transgressions of the other spouse in and out of the collaborative meetings even if they do not disseminate documentary evidence exchanged. That is why integrity is listed as a factor. The Collaborative Divorce process stresses mutual respect during and after the process regardless of what events led to the divorce. Unless both spouses possess the personal integrity to honor the confidentiality contract which they signed at the outset, there is the potential for disclosure of private information at some point during the process or after it is concluded. Of course, the settlement itself can have built-in penalties (i.e., loss of assets) should one party violate the confidentiality agreement even post-divorce.
If you have not chosen the Collaborative Divorce process, please understand that if you go to trial, there is no privacy. Trials are open to the public and a record, which can be purchased by anyone, will likely be made. Only in the rarest cases do judges close courtrooms to the public, including news media. Trials are open to the public in America to assure the integrity of the judicial system.
If you are able to settle your litigation case out of the courtroom, there can be less public disclosure of private information, but except in special cases, even here, information is at risk. While mediations are private affairs and nothing said in mediation can be subsequently used in court, there is nothing to prevent participants from discussing their perceived version of events which occurred before or during mediation. Discovery rules in Texas require the exchange of all kinds of documents and other sensitive data. What the receiving party does with that information is not restricted except in very limited circumstances where one party can demonstrate potential harm to employability or other significant areas of life. These “confidentiality orders” are hard to obtain and while they can carry significant economic penalties for violation, the injured party nevertheless sustains the feared damage and must spend appreciable sums of money and time to obtain relief from the courts.
The Collaborative Divorce model offers more privacy generally and more creative methods of dealing with confidentiality and privacy than the litigation model because it was designed to be so. The litigation model is designed to ferret out hidden information. The Collaborative Divorce model was designed to accommodate couples who understand the tension between one spouse’s right to “know” and the other spouse’s need for privacy.