Trend: Keeping Quiet about Split

    Famous former Beatle Sir Paul McCartney is fighting for one in his high profile divorce; pro-golfer Greg Norman is embroiled in a battle with his ex over violating one in their divorce settlement; and, oddly, rock idol Mick Jagger never did have one with former model Gerry Hall. And now she is telling all in a new book about their life together -– the good, bad and ugly.

“It” is a confidentiality clause, and while it has been very common in the business world of mergers and acquisitions, in the land of matrimonial law, it is almost the exclusive property of the very rich and famous. “In my years in matrimonial law, I have never heard of or used a confidentiality clause in a divorce settlement,” said Joseph Trotti, 49, a practicing matrimonial lawyer of 26 years whose practice, Capell Vishnick LLP, is located in Lake Success, N.Y.

“It’s used quite often in business agreements where there are obvious reasons why things like trade secrets need to be protected under a confidentiality clause. I don’t understand them in divorce cases. After all, with matrimonial cases, unlike any other litigated cases, there is a already a level of confidentiality built in. Namely, only the parties or the attorneys can access the files in court. Divorce settlements are not public documents so there is a protection from the public eye already there.”

But apparently that level of confidentiality isn’t enough when you’re talking about many millions of dollars or tainting your celebrity status or good name on the front page of tabloids. “Confidentiality clauses are a must for certain high profile and or high income earners in order to protect their privacy lest it impact the ex-spouse’s professional life,” explained Manhattan-based matrimonial lawyer Dawn Cardi, 56, who handles the type of high-end divorces that implement such clauses.
 
In a nutshell, the clause prohibits either divorced spouse from talking about the divorce with anyone. Not mom, a best friend, and certainly not the media. “Signing a confidentiality clause means that neither party will disclose anything to anyone about the terms of their divorce, unless it is court ordered, without permission from the other party – that is, parties outside those who are on a need to know basis such as their lawyers and accountants.”

Cloaking the financial status of one of the main reasons for the use of a clause. “That’s not surprising. In general, most people don’t want others to know how much they are worth,” she said. “For instance, you don’t want your first wife to know what the next wife got. And you don’t want her coming in and asking for more child support for previous children once she knows that. A confidentiality clause would not allow anyone to discuss net worth or the details of a person’s finances.”

While finances play a big role in the decision of one party to push for a confidentiality clause, there are other reasons as well. “Moral behavior and terptitude also come into play,” she said, noting that affairs or scurrilous behavior by a high profile individual can often be part of the confidentiality clause.

“The clause could also cover fraud, or issues regarding improper business practices. Things and past actions that can hurt people and their reputations, also their children, ” she said, adding that many times spouses know a lot about each other’s dirty laundry, and a clause in the decree can assure that those details remain unaired.

While celebrity and billionaires might consider confidentiality clauses part-and-parcel of their divorce battle paperwork, your average middle-to-upper income, soon-to-be-divorced couple, whom the majority of attorneys like Trotti represent, don’t. “I never had that experience in matrimonial cases. I don’t know if it makes any sense. There would have to be a remedy if the confidentiality clause is breached,” he said.