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Family Law clients should protect their personal information from identity theft

If you have been involved in a divorce or family law matter in your lifetime, your personal information could be at risk from theft by identity thieves.

Litigation involving divorce, child custody, property distribution, alimony and other family law claims is deeply personal. The pleadings (lay persons sometimes call them "court papers") filed in the courthouse are required to contain the full legal name and address of the Plaintiff and Defendant. The pleadings must also contain the date of birth of each child and until a few years ago, the social security number of litigants and children. The scary part is that these records are public records open to inspection by anyone who walks into the Clerk of Court's office for any county in the State of North Carolina.

Families who resolved their family law dispute out of court through a Separation Agreement and Property Settlement (SAPS) often record these agreements with the Register of Deeds in the county in which they reside. These SAPS often include personal information as well and until recently such information as full legal name, address, social security number and date of birth. These records, including actual images, are often available online.

According to @JavelinStrategy, a company that has been measuring identity theft since 2004, identity theft increased in 2008 to 9.9 million adults and cost Americans an estimated $48 billion. Their study found that stolen wallets and physical documents accounted for 43% of identity theft.

If you have ever been divorced, involved in a child custody case, or a child support case, such documents containing your personal information may very well be on display at the county courthouse or in the county Register of Deeds.

In 2005, the North Carolina State Legislature enacted the Identity Theft Protection Act, N.C. GEN. STAT. § 132-1.10, in an effort to protect North Carolinians from identity theft. The act:

1. Placed restrictions on the use of social security numbers by businesses;
2. Required businesses to securely destroy business records containing personal information;
3. Allowed consumers to place a security freeze on their credit report;
4. Required consumers be notified in the event of a security breach;
5. Expanded criminal prosecution of identity theft; and
6. Enacted a requirement that the Clerk of Court and Register of Deeds remove personal information upon request.

The legislation has been expanded since it was enacted in 2005 to provide additional protections. In fact, Governor Beverly E. Purdue just signed into law an act that will become effective 1 October 2009 that further enhances the protections. The new law allows the Clerk of Court or Register of Deeds to remove social security numbers and driver's license numbers without a request.

While there are a few statutes that still require disclosure of social security number, driver's license and other identifying information in pleadings filed with the Court, many uses are now prohibited. Any person who prepares or files a document recorded with the Register of Deeds or filed with the Clerk of Court can be subjected to a $500 fine.

The Identity Theft Protection Act provides a mechanism for you to have your personal information removed from the public record. Part (f) of the State law allows that:

"Any person has the right to request that a register of deeds or clerk of court remove, from an image or copy of an official record placed on a register of deeds' or court's Internet Web site available to the general public or an Internet Web site available to the general public used by a register of deeds or court to display public records by the register of deeds or clerk of court, the person's social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords contained in that official record. The request must be made in writing, legibly signed by the requester, and delivered by mail, facsimile, or electronic transmission, or delivered in person to the register of deeds or clerk of court. The request must specify the personal information to be redacted, information that identifies the document that contains the personal information and unique information that identifies the location within the document that contains the social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords to be redacted. The request for redaction shall be considered a public record with access restricted to the register of deeds, the clerk of court, their staff, or upon order of the court."

No fee may be charged by the Clerk of Court or Register of Deeds for redacting the pleadings filed with the Court and recorded with the Register of Deeds.

However, any person who requests a redaction without proper authority to do so shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.

Our firm continues to see documents filed with the Court—especially in child custody, child support, and property division cases—where personal information is included. We are advising all of our clients to request that their personal information be removed from the public record to better safeguard their identity. We are also asking judges to place medical records and other evidence introduce at trial under seal to keep it private.

We believe, at minimum, that you should take the following steps:

1. Check the records published about you by the Register of Deeds in the county in which you reside or have resided. Generally you will want to examine any recorded Separation Agreement & Property Settlement (SAPS), Deed, Deed of Trust, Power of Attorney, Assumed Name or other similar document. Links to all North Carolina's Register of Deeds offices can be found at The North Carolina Register of Deeds Association;
2. Check the records at the Courthouse in the county where you were involved with any litigation.
3. If you find information that should be redacted, send a written request specifying what information should be redacted and identify the specific documents where the personal information is displayed. You may use this Request to Redact Personal Information to ask that the Clerk Redact your Personal Information.

We hope this helps North Carolinians better understand their privacy rights in family law litigation. We have helped a number of clients redact personal information. Sometimes litigation was necessary to effect the redaction. If you have specific questions, please let us know through our Virtual Law Office.

*Author's Note: This article is intended to raise awareness of the problems of identity theft associated with family law and divorce matters. It is not intended to be a comprehensive analysis of the steps you should take to protect your identity. We strongly encourage you to consult with a licensed attorney in the State of North Carolina who routinely handles family law and divorce matters.

Published September 3, 2009
Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

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