Can a Private Investigator Help My Divorce Case?
When we think about private investigators, most of us imagine something out of a movie: The private investigator sits in his car, chomping a sandwich and smoking a cigar while he tries to catch a cheating spouse and lover in a clandestine embrace. But is this the way it is in real life? Yes and no.
How a Private Investigator Might Help
Private investigators are often hired to assist with family law cases, and they can be very helpful for a variety of reasons. However, more often than not, the evidence they collect is more circumstantial than what you see in the movies. When the case involves extramarital affairs, the couples are usually discreet enough that the film is PG-rated at best. Still, every P.I. has stories of catching people in the act and capturing some very private, revealing moments on film.
The Illusion of Privacy
Most people close the blinds unless they’re on an upper floor in a building where they believe they can’t be seen from the ground. But what if a private investigator manages to take video from an upper floor in the building across the street? If a house is in a secluded area, the spouse who has hired the private investigator can give the P.I. permission to walk onto the grounds of the house. The illusion that the lovers can’t be seen because of the seclusion of the house is just that – an illusion. The investigator can easily record their activity through the windows.
Example One: Video Recording
In one case, a male client knew his wife was having an affair, but the investigator hadn’t been able to get any real evidence. So, the P.I. suggested that the client go on a short trip. It wasn’t long after the client went out of town that a strange car appeared at the house. The P.I. called the client and asked him to come back to town, after which the client and P.I. entered the house together and retrieved the client’s gun.
They could hear the wife and her lover in a downstairs bedroom, but the door was locked. The investigator stood by with the gun visible on his hip and a video camera in his hand while the client removed the door to the room and yanked the bed covers off of his wife and lover. The investigator had rehearsed with the client what to say because it was important that he not threaten his wife’s lover in any way. Needless to say, this relationship ended in divorce, and the investigator’s film was instrumental in the husband’s case.
Example Two: Setting Your Spouse Up to Admit Guilt
In another situation, a male client was able to intercept his wife’s emails and learn that she was seeing a man who was arriving in town the next evening. She told her husband that she was going out with the girls, but when the investigator followed her, she ended up at a hotel. He observed her coming out of the hotel with her boyfriend, and while they were gone in the boyfriend’s car, the client moved his wife’s car from the parking lot. The investigator contacted the police to let them know that even if the car was reported stolen, it wasn’t actually stolen. Of course, if the wife reported the car stolen, she would have to admit that she had parked it in a hotel parking lot.
When the wife returned and frantically looked for her car, the client drove up in a van and threw all of her clothes onto the ground. He had gathered them in garbage bags just for this purpose. She was now officially caught and could no longer deny her affairs.
Example Three: Workplace Monitoring
In another case, an employer was related to the spouse of an employee who was suspected of having an affair with a coworker. The employer hired an investigator to place a hidden video camera in the office, which caught the married employee and lover having sex numerous times during the day. So, this couple was not only guilty of avoiding work, but they were committing acts of “illicit sexual behavior” (which is what we call “adultery” in North Carolina. We will, however, in this article just call it “adultery.”)
Most of the time, people have affairs with just one person that they’ve met at work. This is why the first question an investigator usually asks a client is: “Where does your spouse work, and who works with your spouse?” Investigators say it’s much less common (at least in North Carolina) for a married person to pick up several lovers in bars or to be caught involved in prostitution. But it certainly isn’t unprecedented.
Example Four: Following Someone
In one case, it was discovered that a man had placed a profile on a dating website, stating that he was “separated.” He began dating women in the area, and the investigator was surprised to find the man out with different women on different evenings. Eventually, the man picked up a woman at a bar and engaged in a sexual act with her in his car in a parking lot. The private investigator was able to shoot video of the couple through the window of the car.
Don’t Tell Anyone You’re Hiring a P.I.
Unfortunately, it also isn’t uncommon for someone to have an affair with a close friend of the family. For this reason, investigators and attorneys advise their clients not to confide in anyone about their suspicions of infidelity – not even their parents, who might inadvertently let it slip to the spouse. Then, the spouse could even hire his or her own investigator to determine if surveillance is taking place. If this were to occur, the spouse would become so careful that it would be nearly impossible to gather any evidence to assist in a subsequent court case.
Who Hires the Private Investigator?
Often, a husband or wife suspects their spouse is cheating and hires a private investigator before consulting an attorney. This is usually a mistake. There are rules about confidentiality and privilege in North Carolina, so the information is often better protected if the attorney hires the P.I. on behalf of the client. When the contract is between the attorney and the investigator, any material created in preparation for trial may be protected from discovery by the the opposing party as “attorney work product.”
For this reason, it is advisable for a client to consult with an attorney first. Family law firms can recommend reputable private investigators that are not only professional but knowledgeable about the laws. They won’t gather any evidence illegally which could undermine a divorce case, and they will provide very detailed reports that will help the attorney present a thorough case in court.
What Do You Do With the Information Collected?
In some circumstances, however, evidence collected by a private investigator will not be helpful in a divorce case. An attorney can advise a client if it’s worth spending the money on a P.I. before that investment is made. For example, if the couple has only been married for a year, if the client makes too much money to be awarded alimony, or if the parties don’t make enough money to pay alimony, it may not be useful to present evidence in court from an investigator. While a client may want to hire a P.I. for emotional reasons, it’s important to check with an attorney to find out if it would truly be helpful from a legal perspective.
Of course, it’s perfectly acceptable to hire a private investigator and decide not to use the information. The evidence obtained by a P.I. can help someone decide whether or not to remain in a relationship. Even if the possibility of divorce is remote, it’s a good idea to be prepared. If the attorney has contracted with the P.I., the client is protected if the matter does end up in divorce court.
Avoid ‘Hiring’ Friends to Watch Your Spouse
What if someone asks a friend to follow the spouse or place a wiretap on the spouse’s telephone? This is a recipe for disaster. First of all, wiretapping is illegal – a violation of both federal and state law. There are trespassing and harassment laws as well that the average person might not understand, so a friend could be criminally prosecuted for making an inadvertent mistake. Besides criminal charges, the injured parties could take the friend/amateur investigator to court for monetary damages.
Even if the friend stays within the law, a non-professional is much more likely to tip off the party who is being followed. Once the spouse knows they’re being watched, obtaining evidence is next to impossible. This mistake can be costly since private investigators generally charge by the hour. Tipping off the spouse may require considerably more time on the part of the professional investigator, resulting in added cost. One private investigator likens it to getting an estimate on a malfunctioning transmission only to go home and take the transmission apart. When you have to return the transmission to the mechanic in dozens of pieces, the estimate will be higher because it will take the mechanic longer to put the mess back together again.
When Should a Private Investigator Be Hired?
Even if there is nothing more than a suspicion of something amiss in the marriage, consulting with an attorney is a good idea. If the matter ends up in court, the evidence gathered by the P.I. is much more likely to be admissible in the case if it has been gathered with the guidance and direction of an attorney. If the judge disallows the evidence because it wasn’t obtained legally or doesn’t meet technical requirements, it’s a waste of the client’s money.
Some people believe they can confront their spouse and find a way to work on the marriage. While this is certainly a possibility, if the cheating party is unwilling to work on the marriage, it’s helpful to have the evidence before the confrontation takes place. Then, that evidence will be available for a divorce hearing if it comes to that. It is also important to prove that the affair began before the couple separated. So, most attorneys and investigators advise people to consult an attorney and hire a P.I. as soon as they suspect their spouse is having an affair.
Opportunity and Inclination
Since the majority of cheating couples are discreet, it is rare for someone to be “caught in the act,” so proof of an affair is usually hard to obtain. For this reason, the court only requires that a spouse provide circumstantial proof of adultery. This requires evidence of “opportunity and inclination” for adultery to have occurred. In order for the evidence to be helpful in court, the evidence should show both opportunity and inclination.
Opportunity to commit adultery includes finding that the parties have entered a home, hotel room, the back seat of a car, or other such place alone and emerged some time later. This is an opportunity for sexual relations. Of course, the parties could be business associates holding a meeting in a hotel room, or they could be platonic friends sleeping in separate rooms. This is why inclination is equally important.
Inclination evidence shows that the parties wanted to commit adultery. Usually, this evidence includes video of the couple kissing, holding hands, or hugging in a romantic way. Emails, phone calls and credit card receipts for flowers may also prove inclination, and if you put this evidence together with the evidence of opportunity, it might be enough for a judge or jury to find that adultery occurred.
Adultery for Alimony
North Carolina, alimony is based primarily on need. The court tries to make sure that both parties are able to manage financially when a separation or divorce occurs. If the spouse seeking alimony is proven to have committed adultery, however, that spouse is no longer entitled to that alimony, unless the other spouse is also committing adultery. If both parties are committing adultery, then the court has the authority to provide alimony.
The termination of alimony payments generally happens after a term of years. Also, alimony usually ends upon “cohabitation” of the party receiving the alimony, which means that the person is living with a new romantic partner. While cohabitation is clearly defined in the statutes, it is not always clear whether someone is cohabitating. Investigators are often called upon to determine whether someone has moved in with the party receiving alimony.
In one particular case, a woman owned four beach houses and was living in one while renting out the others. A private investigator hired by her husband rented out the house next door and obtained videotape of the wife’s boyfriend at her residence during all hours of the day and night. While this could still be considered circumstantial, the investigator was able to obtain videotape of the boyfriend’s daughter taking the school bus from the house in the mornings. The school requires an official address in its registry, so this was substantial proof that the wife was cohabitating with the boyfriend. The investigator also found the “given” address of the boyfriend only to take film of furniture stacked up inside, obviously showing that no one was living there.
As a result of this evidence, the husband was relieved of his alimony obligation, which he had been paying for ten years in the amount of $5,000 per month.
Investigations in Child Custody Issues
Private investigators are often called upon when custody matters are involved with a family law case. For example, a mother suspected that her husband was drinking and driving with the children in the car. An investigator was hired to follow the father, where he was found in a bar. The investigator was able to observe the father and count the number of drinks he had before he picked up the children at school. This proved to the mother that her husband was putting their children in danger, and as a result, she was able to present the evidence in court and protect her kids.
So, private investigators do more than simply follow spouses who might be having affairs. Perhaps a parent is traveling with the children in a car without putting them in their car seats. If that parent denies it, an investigator can videotape and prove the reckless behavior. The evidence can then be used to grant custody to the other parent.
In a court order regarding custody, one spouse may have been granted “the right of first refusal.” This means that if one parent has the children and cannot care for them on a particular day, that parent is obligated to give the other parent the first opportunity to care for the children. An investigator can conduct surveillance to find out if parents are complying with the court order. It may be found that a parent is leaving the children with a 17-year-old sibling rather than calling the other parent.
Of course, a parent’s dating behavior also comes into play when custody is at issue. This often takes place after the divorce proceedings are complete, so it isn’t about adultery. It’s about the welfare of the children. When a parent’s dating relationship impacts the children, it is fair game in a child custody hearing. If a parent’s new boyfriend or girlfriend is a convicted sex offender, has a background of criminal drug charges, or is proven to be an alcoholic or recreational drug user, for example, this information can be used to argue against custody for that parent. If one parent has heard rumors about the other parent’s boyfriend or girlfriend, a private investigator can be instrumental in determining the legitimacy of those rumors.
There is a famous case of a P.I. in Los Angeles – Anthony Pellicano – who was convicted of a host of illegal activities, such as wiretapping, computer fraud, and identity theft. In court, he testified that his job was, “problem-solving, through the acquisition of information.” In other words, he was willing to use any means to obtain the information his clients wanted.
While most private investigators are professional and obey the law, some are willing to obtain information illegally. Some clients are so desperate to get evidence against a spouse that they’re willing to go to any lengths for it. This is, of course, a mistake. Evidence that has been shown to be obtained illegally will no doubt be thrown out of court. It will do nothing to assist a divorce case and can actually seriously undermine a client’s case.
So, what is legal, and what is illegal? As was previously mentioned, wiretapping is illegal. An investigator can videotape anything that can be seen publicly, but the audio capability of the video camera should be turned off in many settings because the sound may not be admissible in court. This means that the P.I. can videotape such things as a couple holding hands in public, kissing goodbye before getting into a car, and even making love if there are no curtains covering a window, but the P.I. generally cannot audiotape the couple’s conversations.
A video camera can, sometimes, be hidden in a residence to record the activities of those occupying the home. The legal issues raised by hiding cameras are especially complex. A person should never take this action without specific advice and guidance from an attorney. Hiding cameras and audio recording devices may result in criminal liability in certain circumstances. It is always advisable to employ a professional to assist with the consideration of these activities. Spouses have, on many occasions, hidden cameras and microphones in their own homes to catch a spouse committing adultery. These attempts to obtain proof are sometimes successful but are fraught with risk and should be carefully considered.
There are also numerous considerations that come into play with regard to recording activities in vehicles. Many clients seek to place a GPS tracking device in their spouse’s car or a company car. Again, this requires careful consideration in order to manage civil and criminal liability. Nevertheless, the GPS device has become a very productive and cost effective method of conducting surveillance and is employed in many cases.
Computers also present a multitude of issues for the unwary. Private investigators are often trained in forensic evaluation of computer disks and are able to obtain helpful financial records, web browsing records, photographic evidence and sometimes, pornography. The legality of accessing a computer is complex and depends on factors such as ownership of the machine, as well as the expectations of use of the machine by the parties.
Investigators are sometimes called upon by the spouse who has been followed to check for eavesdropping devices, GPS devices, and hidden cameras. Some P.I.’s have countermeasures training, which allows them to check for such equipment, and others specialize in hacking to find hidden computer files and emails. Scans can be run on computers to determine if someone has added spyware to it in order to follow another’s computer activity. In one case, a married woman was having an affair, and her boyfriend put spyware on her computer. She hired an investigator who found the spyware and testified in a civil court proceeding that the woman brought against the boyfriend because he had no legal right to put the spyware on her computer.
The Bottom Line
An investigator may be helpful during several stages of a family law case – before separation to determine if adultery has taken place, after a separation agreement is in place to make sure no breach of the agreement has occurred, or even after a divorce is final and child custody or alimony issues are involved. In the latter case, the investigator may acquire evidence that gives the client grounds to ask the court to modify a prior order. This may be important if the welfare of children is involved or if a spouse is unjustly receiving alimony.
It is necessary to be 100% honest with a family law attorney and a private investigator. Neither of them can do their jobs unless they know everything about the situation. In fact, some investigators will terminate their relationship with a client and refuse to refund fees if the client has lied to the investigator.
Private investigators are often an integral part of a family law case, and they can assist in numerous ways to strengthen a court proceeding and help the parties find out the truth. They provide both a legal and emotional service to people in the throes of a very painful situation.