The no-fault divorce revisited: Is your divorce anyone else's business?

An article on the Huffington Post gave me pause just now.¬† The author Fred Silberberg stated that in New York you can get divorced and the public has no right to be there in the court room. That the court proceedings are not open to the public. I was not aware of that. I have sat in on many divorce proceedings in New York. I never questioned whether that was because I was an attorney or not. But I can tell you that when I have sat in, many lay folks were also in the court room and can hear everything that is going on in your divorce action. So what is this guy talking about? He differentiated New York from California and said that in California the public can hear but in New York they cannot. I think that is incorrect. I have never seen a judge toss anyone from a courtroom just because the civil action being heard is a “Divorce.” The general public can totally sit in on your divorce and hear all your business if they choose, Mr. Silberberg. Both in New York and California.
Now. I don’t think they can get a copy of the transcripts. Nor can they view the file unless they are parties to the action or the attorneys. But they can sit in in the courtroom and hear your business. Sure, the judge always has discretion if she will seal a case off from the public. But that is likely to meet with First Amendment challenges if it is a newsworthy case. So I think you are wrong on what you said in your article, Sir. We can argue about it, but I think, ultimately, you are incorrect.
Now. Do I agree with you that it SHOULD be confidential? Absolutely. I think I may have blogged about that here. I feel that First Amendment or no First Amendment, people’s privacy should be protected when they get divorced. That is not the public’s business, just like what went on in the privacy of their bedroom is no one’s business while married, it shouldn’t be when they divorce.
My only point with this post, is, I think you are incorrect when you stated that in New York, unlike California, the public cannot sit in the courtroom during your divorce trial. I think they can, and I have seen them myself. And I have sat in on many cases where I was not the attorney of record. The judge, without compelling reasons, can’t toss folks from the court room in a civil (or criminal) action whether it’s a divorce or not. No fault or not.
I’m just saying.
Originally published September 22 2009