“But I hardly even know these people!”

Protecting the financial privacy interests of nonparties to a Florida divorce, part 2

Here we follow up on part 1 of this post in which we introduced the topic of third-party financial information in a divorce proceeding. As we said, it may be possible to have the court seal that data once it has become part of a court record in a divorce if the nonparty can show one of the six allowable reasons for a Florida court to seal information otherwise presumed to be open to public review as a government court record.

We also noted that Florida courts routinely redact sensitive personal information from court records like account numbers and Social Security numbers.

Today we share details from Florida cases that have addressed issues of nonparty privacy in divorce proceedings.

To get nonparty financial information, it must be relevant to financial matters within the divorce

In 1988, the District Court of Appeal, Fifth District, said in Bradstreet v. Taraschi that a nonparty’s financial data could be discoverable in a divorce proceeding if “relevant to any economic issues in the action.” For example, a “third party’s financial records may be discoverable if an issue arises as to improper financial dealings between the third party and one of the spouses.”

Unless the nonparty’s financial information is relevant to the divorce, compelling its disclosure would be “an unwarranted invasion into the privacy rights of the non-parties.”

State constitutional right to privacy

In McFall v. Welsh, a brand-new case from October, the Fifth District Court of Appeal faced a similar issue when a former wife filed a petition to modify a child support order from her divorce. The former husband in response asked for the ex-wife’s joint tax return with her new husband, which contained income information belonging to the new spouse. The ex-wife shared a copy of the return but redacted her new husband’s financial information.

The new husband was not a party in the child support modification matter.

The former husband asked the court for the unredacted version of the return containing the new husband’s financial information. When the trial court granted this motion, the ex-wife and her current husband asked the appeals court to quash that order.

The Fifth District said that the new husband has a constitutional right to privacy under the Florida Constitution and that the ex-husband who sought the current spouse’s private information had not produced evidence to prove that it was relevant to the child custody dispute between the parents – his wife and her former husband.

The themes of these cases – relevancy and constitutional privacy rights - provide guidance for nonparties in divorce actions who want to protect their financial information. An attorney can investigate the details of a nonparty’s circumstances to provide tailored advice and advocacy.

(The McFall case is available on Westlaw at 2019 WL 5485550 and the Bradstreet case at 529 So.2d 809.)

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