Trend: Keeping Quiet about Split

And there is. Standard confidentiality clauses also have built in punitive damages, according to Cardi. “If you violate it, you have to pay X amount of dollars. It’s a liquidated damages clause. Whatever the violation is, the person is always entitled to sue for damages. A solid confidentiality clause will stipulate exactly what is covered,” she said.

“The problem I have with that is that the party in good faith may not say anything, but there are other parties that were involved who might. And something could get leaked out. Then you wind up in a series of other lawsuits. I see it being a nightmare and the possibility of further litigation. It would be hard to enforce,” said Trotti.

But as Cardi explained, the enforcement is often the threat of possible litigation itself. Plus, the signee often is “rewarded” with some monetary incentive. “There is a financial kicker for signing a confidentiality clause. Definitely. The party will get more money as a sweetener,” she said.

To some, however, the money just makes it worse. “You are being paid off under the premise that ‘I don’t want world knowing our business.’ But the truth is that your spouse just wants to hide something. Why are you going along with protecting his bad behavior?” says Bonnie Russell, who operates the web site www.FamilyLawCourts.com, a type of watchdog Web site for the family court system. 

Russell is also the founder of www.1st-pick.com, a Del Mar, Calif.-based public relations and referral firm for attorneys, physicians and Realtors. “Anyone asking you to sign a confidentiality clause has something to hide. That’s the bottom line of a confidentiality clause. Bad behavior or sliding money around and the injured party is prohibited from talking about it. How is that different than a gag order?”   

It is different from a gag order, even though the effect is tantamount to the same thing: silencing both parties. “A gag order is issued by the judge and is basically an order preventing the parties or attorneys from speaking to the media,” said Trotti. “Confidentiality agreements are crafted between the parties about what they can or cannot speak about to anyone else outside those with privilege.”   

“A file can also be sealed, which is also a directive from the court, is done so that no one at all can look into it. This is most common in criminal cases and those involving juveniles. Cases can only be sealed or unsealed by the court. And you never hear that of a divorce file being  sealed,” he said.   

While confidentiality clauses in divorce contracts are now standard procedure for certain high-end, high-profile divorces, even the lawyers who negotiate them understand that it boils down to one thing. “Control. I personally find it very controlling, but if my client is in a position to sign one,  I make sure it’s as specific and as narrow as possible. That’s the key. Broad confidentiality clauses are open to broad interpretation and can leave your client vulnerable,” said Cardi.   

Broad or narrow, paid for or not, some people just aren’t convinced that confidentiality clauses are in the best interest of both parties. “They make no sense to at all. If you stipulate to them, you can be bludgeoned and find yourself back in court. What are you trying to keep confidential? People know when other people are wealthy. To me this just is once again a case of the golden rule: he who has the gold makes the rules.”     

Lenore Skomal is author of nine books and columnist of an award-winning weekly column in the Erie, Pa., Times-News, she also teaches college journalism in Pennsylvania.