In divorce situations, private investigators are often called upon to help build a case and establish certain facts that are important to a client. However, what many clients don’t know is that not all private investigators are created equal. Depending on what you’re trying to prove (unreported income, extramarital affairs, drug/alcohol abuse), very specific private investigators may be necessary.
In this episode, your host and guide, Attorney Leigh Sellers, discusses the legal implications of hiring a PI, the different types of PIs, and why you should always speak with your attorney before hiring a PI to assist with your divorce and/or child custody case.
Key insights from the episode:
The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team (NC & SC) at http://www.TouchstoneFamilyLaw.com
Hello there. Going through a divorce? Considering one? Sorry to hear that, but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really, with its own rules, its own expectations and in many ways, its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt.
And now, here she is. Your host and guide, Leigh Sellers.
Hi everyone, and thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And, in this episode, I’ll be answering another question that many newcomers to Splitsville have, “Should I hire a PI?” So let’s dive in.
In divorce situations, often other experts are needed to help build a case, or help prove a case, or establish some fact that’s important to our clients. And a private investigator or PI often is a very valuable resource, and it depends, of course, on the situation. So the most common areas where you’re going to need a private investigator would be if you are trying to prove that your spouse is having a relationship outside of marriage, but there are others.
So you may need to have a private investigator to follow your spouse when your children are in their care if you are convinced that somehow they’re behaving in a manner that makes your children unsafe, but you can’t prove it without putting your children in the middle of it, or having them testify, or say something. So you want to get somebody else to be watching and to see if what you’re suspecting is happening is actually happening.
The other situation might be if you think your spouse is being dishonest about their work history, and they’re saying that they’re not working. They had a side job the whole time you were married, and now that you’re separated, they’re claiming, “Oh, no. I’m not doing that anymore,” but you feel like they are, and you want to get proof that they really are continuing to do side jobs for other people on the weekends when they don’t have the children.
And you could also need to be following your spouse if you think that they have a serious drug and alcohol problem that you’re having difficulty proving. That might be a time to have somebody watching them. So those are some examples of where I’ve seen the use of a private investigator to be important in a situation where I was helping a client, but private investigators can be expensive. And so you really have to have the perfect scenario for them. To just pay a private investigator to follow your spouse around is really expensive. You really have to be able to give them more guidance.
So whether or not you’re going to hire one is going to depend on: What are you looking for? Is it something that’s likely to be performed out in the open so that just by following them you’ll actually be able to get the information you need? Another question is: Can they be followed without being detected? So some of that is going to depend on the circumstances and where people live. If they live in a gated community, hiring a PI isn’t going to be very helpful, because they can track them to the gated community and then they stop. So they can’t actually have access to them where they’re needed. Do they work somewhere that has a lot of security? Well, in that case, a private investigator is really not going to be able to get very close without being detected if they work in a position where people are looking out for them, or watching for dangerous situations.
And then again you have to decide whether or not the expense of having a private investigator is worth what information you might be able to glean, and is there another reason or another way that you can approach the situation that doesn’t involve that particular person. So it’s always going to depend on the facts of your situation, but let’s talk about whether or not to hire a private investigator if you think your spouse is having a relationship outside of marriage, and they’ve been dishonest about their conduct, and you feel it’s important to establish that they are indeed having an affair.
In some states, adultery is still a ground for divorce, so in South Carolina it’s actually a ground for divorce, so it can be very important in South Carolina. And suspicions, and admissions, and text messages are not necessarily going to be enough to convince a court that this person’s having an affair. So if you want to have your spouse followed because you suspect an affair, it really helps to know that they are having one. So I think following them to see if they’re having one just because you think they might be having one can be valuable if you have real reasons to suspect it. So let’s talk about what those might be.
A second cell phone that you find, texting and deleting text, password changes, strong behavioral changes, increased interest in appearance that had waned over time, big weight losses, a real fixation on hair, makeup or clothing. Being gone a lot with not really any really good reason as to why they’re gone. Again, just new devices that you see. A lot of people just notice all of a sudden there’s a lot of texting going on, and then the phone, if they lay the phone down, it’s locked. Or they want to very quickly put the phone down if somebody walks in the room.
So if there’s really behavior that makes you think, “I really think they might be having an affair,” well then it might be worth it to you to just have that PI be following them when they have an opportunity, but you’re still going to really be thinking about: Is this really an opportunity where they’re going to meet up with another person? So if your spouse is taking your children to the beach for the weekend, that’s not really an opportunity necessarily for a hookup. But if you’re taking your kids to the beach for the weekend, and your spouse is going to be alone, that might be a really good time to see what they do when you’re not around, especially if you had these suspicions. But you really do need to talk to the private investigator, and talk to your attorney as to whether or not this is going to be money well spent, or really going to make any difference in your case.
In terms of a custody dispute where you’re really concerned about what’s going on when your spouse has the children, a lot of times children will say things when they come back from the other spouse’s house that cause my clients concern. And sometimes that concern may be well founded, and sometimes it just may be gross misinterpretation of the children’s comments, or the children are just misinterpreting what they’re observing. So sometimes it’s not well founded, but when it’s your children, and you have reasons to be concerned about the other spouse from before the separation …
For example, when you have had someone who has been addicted and maybe they were in recovery when they left but something that the children is saying is making you think, “Oh, I think they may have relapsed.” You may have reasons to take what your children are saying and put it into context with your own experience with this person, and your gut’s just telling you, “I think this is going on.”
We’re not going to put six year olds on the stand to try to convince a judge that Mommy or Daddy is drinking too much, or perhaps using drugs. So you really are going to need to have a different way of proving it. And even to try to get a court ordered drug test, you’re going to have to have a good faith case to get the judge to make somebody go have drug tests. You’re going to have to be able to establish why you think they currently need to do that. So the PI could be helpful in seeing what the children are doing, and seeing how the spouse reacts in terms of those situations.
And the reason those are important is because generally if somebody has had an addiction problem in the past, they’re not supposed to be using those substances at all. So really, proving that they have a beer in their hand or in any of those situations or environments, purchasing drugs, looks like they’re purchasing drugs, they’re an addict and they’re supposed to not have it at all. If your spouse has never actually had an addiction problem, you think they have one but they’ve never actually been to any sort of facility or had any kind of treatment, you may be just having the PI follow them to see how much alcohol they’re consuming, and whether the children are in their presence, and how they’re acting.
Often one of the places in the summer, especially, that we will have this situation is where they think that they are out drinking and boating with their children on the boat. And during the marriage, you have been there to be taking care of the children while this spouse was sitting back and drinking with their buddies or their friends. And so you’re just worried that they’re going to continue in that behavior when you’re not there to be watching the children. So in that case, having somebody see, are they really just continuing with their habitual behavior despite the fact that they’re one man down in the childcare arena? And that’s not too hard, because you know what their habits are, and you’re just sending them out to see, are they changing their conduct now that they don’t have two people there? One to be the designated childcare provider while the other one’s drinking, kind of like a designated driver. You can have designated childcare providers.
So if it’s been a habit that there are barbecues and somebody drinks a little bit too much, but it hasn’t been an issue because you’ve been there, we may need to see if they’ve changed their behavior. It may be important to your custody situation, if you really think that they have an alcohol problem that needs to be treated, so that’s definitely a situation.
Now if you’ve had someone who’s a drug user, and you think they’ve relapsed, you’re really going to need a very specific kind of PI that can go into the kind of neighborhoods and actually catch somebody purchasing drugs, because most people don’t use drugs openly. So you’re not going to catch somebody using heroin on the street corner, more than likely, not most of my clients. If they’re actually that open about it, they don’t have custody of their children. There’s a lot more going on.
But if you really have somebody who you think has fallen into it, they’re going to be doing those kind of things behind closed door. So the best you can do is catch them actually purchasing it, and we’re going to have to be very specific about the type of investigator that we hire for that sort of behavior.
But the job on the weekends, or the extra jobs in the evenings is really one of the more easy ones to do. And a PI can be very helpful if you think somebody is earning money under the table and they have a side job that’s an outdoors one. And we have people who are, I don’t know, doing home repairs, or car repairs, or extra plumbing. Just the kind of jobs where you could work for somebody during the week repairing automobiles for a particular shop, and then on the weekends you could do that thing for your buddies and just take the money directly. If it’s that sort of thing, it’s pretty easy and a PI can be pretty helpful to show that they’re continuing to do landscaping or home repairs.
Where you’re not going to find it useful for a PI necessarily is if it’s more of a professional conduct. So if they are doing tax returns for people on the side, or working on computer analysis, or financials, or doing some sort of website design, that is going to not be something a PI is going to be able to help you with. That’s going to be something where we’re perhaps going to get a different kind of investigator, which may be a forensic one. We may have to get a computer seized, and have a forensic professional go through their computer, and show that they have been doing this work for these people.
So it depends on the type of PI, and there are certain private investigators that have moved into that field where they have started computer forensic, and they’ve hired particular people to check cell phones, and check computers, and track people’s movements. And they are licensed to do that, and they know what they’re doing. And there’s some legalities as to whether or not that’s appropriate, because some of this identification is going on before people have separated.
So if you’re thinking about hiring a PI and having something scoped out, or having computers looked at, or iPhones looked at, or Android phones looked at before you’ve separated, you need to make sure you’ve spoken to an attorney as well as an investigator. Some investigators are fairly astute with the legalities of what they’re doing, and there are others that are not.
And I know that may be surprising, but there are some people who put themselves out there as being an investigator or having the skill to do a particular job in the context of divorce, and they don’t actually understand the law. They don’t understand what we need. And they will do a lot of work for people, and we will get reports that are of no consequence, because yes, they followed them, but they didn’t get anything that we can actually use. And they didn’t get what we need, even if it was available to them, because they didn’t know what to look for. So you really need to work with your attorney on who you’re selecting, and have a very particular plan in mind and an objective. And make sure that it’s going to be legal, and it’s not going to get you in trouble, and that it’s going to be admissible.
So I do not suggest simply going out and hiring somebody on your own. You want that done in context of your legal work. So don’t go out and try to catch them cheating, and then go talk to an attorney. You need to do it the other way around. So talk to your attorney, discuss what it is you’re trying to prove, and they will all have recommendations. I certainly have a list of private investigators that I’ve used before, that I trust, that I trust them with my client’s work, and I often rely on them. And if it’s in a different city, I have good resources for finding someone in the other city who would be appropriate for the job as well.
So talk to your attorney. Get good recommendations. And really understand what you’re going to use that information for before you start having these private investigators or computer forensics people involved in your life, because you need it to be done correctly. It’s very important, and we just want to make sure it’s done right.
So there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune into the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice, if you know where to look. See you next time.
The insights and presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney/client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.