How to Utilize Public Access to Divorce Records

Due to a rich tradition of transparency and democracy in the United States government, public records are readily accessible across the nation. This rule applies in force to divorce records. Under the American system of democracy, citizens are entitled to hold their court systems accountable, which allows ordinary citizens the authority to walk into any court house and demand to see public divorce records so long as the case files are identifiable.

The History of Public Access to Court Records

The right of ordinary people to view public courts records is enshrined in the legal and democratic traditions of our nation. The common law tradition of the United States predates the founding of this nation; however, one of the precepts of the constitution is government by the people rather than a monarch. Under the rule in England, only people who have a proprietary interest in public court records have a right to access those records.¹ In the United States, however, U.S. citizens have a fundamental right to access public court records.

The United States Supreme Court reaffirmed this rule in the landmark case of Nixon v. Warner Communications.² That case involved an attempt by media outlets to access the classified and unreleased portions of the infamous Nixon Watergate tapes. The Supreme Court ultimately decided to not allow the tapes to be released, but not before ruling that most ordinary public court records may be viewed by anyone at any time.

The Three Most Common Ways to View Public Divorce Records: Courtrooms, Clerks, and By Request

As public court records are expected to be widely accessible to everyone, there are multiple ways to view them. Different methods of viewing are more complex or involved than others; however, they each have their advantages and disadvantages. The three most common ways for people for view public court records are in courtroom proceedings, at the court clerk’s office, and by standard public records request.

Courtroom proceedings are public. This means that anyone generally has an absolute right to observe court. This is one possible way to view public divorce records and proceedings. However, court observers are never allowed to participate in the actual proceedings. Furthermore, viewing the actual exhibits will not be possible due to the fact that observers are generally asked to remain quiet and not interfere. Keep in mind however, that certain courtrooms or cases may be under gag order, and therefore will not be viewable by the public. In general, divorce cases are not held under gag order unless the divorce case is relatively high profile.

The most common way and easiest way to view public court records is to view them in the court clerk’s office. All states judiciaries maintain a clerk’s records office in every courthouse. At the records office, any person can inspect any public court record. While the clerk’s office provides the most ready access to public court records, persons wishing to view those records must actually visit the office to view the records (most cases in paper form).

Finally, all states laws contain a Freedom of Information provision. States have commonly modeled their Freedom of Information laws after the federal Freedom of Information Act, which allows citizens to request certified copies of non-exempt public records. Under most states’ Freedom of Information laws, copies of public court records may be requested by mail. In general, records copied under most Freedom of Information laws will come at the expense of the requester, which makes visiting the clerk’s office generally less expensive.

How to Learn How to Access Public Divorce Records in Your Local Courthouse

The easiest way to learn how to access public divorce records in your state is to call your local courthouse and ask about their clerk records inspection policies. In many cases, clerks offices will only allow public viewing of court records during certain hours, and you will most likely be unable to remove any court documents from the clerk’s viewing room. 

Exceptions to the Public’s Ability to View Public Records of Divorces

While there is generally a public right to view public court records, there are some exceptions to the rule. In Nixon v. Warner Communications, the Supreme Court decided not to release the Nixon tapes because it was concerned that Warner Communications was seeking them purely for a financial motive in profiting for the political scandal that would surround the release of the tapes. As a result, the Supreme Court reserved the discretion of courts to seal certain court records. In making its decision, the Supreme Court relied on an older case known as InreCaswell.³ In that case, the Supreme Court explicitly reserved the right of courts to not release scandalous records in particularly nasty divorce cases. The Caswell rule holds true today,and certain courts will keep certain records in scurrilous divorce cases from prying public eyes.

In addition to the ability of courts to hold certain scandalous documents from public view, certain public court records are automatically classified as confidential. In most cases, these categorically confidential documents are exhibits provided by the parties the includes their private vital records such as social security records or medical data. In general, that type of private data such as medical data or exhibits relating finances that are not directly relevant to the divorce is kept confidential.

Finally, court records that would otherwise be public can be classified as confidential at the request of the parties to the lawsuit. In many highly sensitive cases such as celebrity divorce cases, these requests are granted to protect certain documents and information that do not automatically qualify as confidential but probably have good reason to be confidential. Often, these records will remain under seal and cannot be accessed by anyone unless the records are removed from seal by a court order.