Protecting Confidentiality With Non-Disclosure Agreements in Divorce Proceedings

By Michael DiFalco

Divorce is a private and typically stressful matter. When the facts or details of a divorce get out, people face all manner of reactions and emotions, from stigma to personal guilt. Fortunately, divorcing spouses can protect the confidentiality of their divorce proceedings with a well-crafted non-disclosure agreement (NDA). 

Confidentiality and Divorce Proceedings in New York

New York divorce laws are among the most protective of confidentiality in the nation. Divorce records are unavailable for public inspection for 100 years in New York. So couples can breathe a sigh of relief. 

However, information about divorce proceedings can become public if one of the parties chooses to make details of the divorce known to others. Unless a judge issues a gag order, there is no real law that prevents a spouse from speaking about their divorce as it occurs. An NDA, however, can limit or outright forbid spouses from making divorce details public.

How NDAs Protect Confidentiality

NDAs are contractual agreements that require parties to agree to limit their communications in such a way as to prevent certain information from becoming public. During a divorce, an NDA can work wonders at keeping details of the proceedings from getting out. However, the NDA must be carefully and professionally drafted to work.

Specific Provisions

Spouses seeking privacy during a divorce need NDAs containing specific prohibitions. It is never enough to simply prohibit talking about the divorce. Instead, the NDA must detail specific examples that are forbidden by the document. 

Common NDA provisions found in divorces include:

Although generally free to include the terms they choose, spouses are bound by law to refrain from including terms that violate public policy. For example, an NDA forbidding a spouse from telling a doctor or police officer about domestic violence injuries would not be enforceable. 

When to Seek a Divorce NDA

Many couples seek divorce NDAs when they see divorce on the horizon. However, as with prenuptial agreements, couples do not need to wait until rocky times to put an NDA in place. 

Having an NDA in place before a marriage turns sour means spouses need not seek to obtain one while deep in marital unrest. Spouses need not battle over terms because they have already been set when cooler heads prevailed. 

Do you need an NDA?

Whether your marriage is going along fine or you are expecting a divorce, you can potentially benefit greatly from an NDA. But do you really need one? 

The following are a few questions you can ask yourself that can help you determine whether you need an NDA:

  • Do you have a high-profile job that could be impacted by a divorce
  • Are you or your ex a high-conflict person?
  • Do you or your ex use social media often?
  • Are custody issues involved in our divorce?
  • Is infidelity involved? Any other controversies or embarrassing details?
  • Is there any illegal activities, whether potential tax issues or criminal issues?

Answering yes to any of these could mean that you need an NDA. Even if none of the above is true, you simply might be someone who wants to keep their life out of the public eye.

Aiello & DiFalco: Family Law Attorneys Fighting to Protect You

Confidentiality is important. At Aiello & DiFalco, we explore every option necessary to protect your privacy. Whether through an NDA or a prenuptial agreement, our team will find the appropriate measures to safeguard the details of your divorce. Call today for a consultation in Garden City, NY.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.