Should I hire a private detective I think my spouse is cheating on me and I’d like to have evidence in case we do divorce?

We have been a “no fault” state in California since the 1970s. It was billed and sold as a woman’s liberation idea originally. The logic that having your spouse cheat on you is liberating escapes me, but that was supposedly the logic at the time of enactment. From the moment of enactment forwards, there have been grave concerns that the end result was to reduce the amount of money that the woman got and increase the likelihood that they would have custody.

In 1983, an article entitled “A decade of no fault revisited, California, Nevada, and Washington.” by Welch and Bonham concluded that preliminary studies were confirmed to establish that more women were getting custody, less women getting alimony and women were getting less money in general. “With no fault divorce alimony was rarely awarded, child custody was customarily awarded to the mothers, child support orders had not diminished in value and assets and liabilities tended to be awarded equally.”

In 2010, we can safely assume that the court does not care that your spouse is having an affair, and maybe not even care if it is a sexual addiction or deviant behavior. So the merits of having those incriminating photos of the lover is of marginal value in many cases. Occasionally I will encounter the spouse who wants to know, so that they can move on emotionally. I can understand that, especially if it is for moral or religious reasons.

However, an investigator can help in a legal case in doing:

1. Records Searches: Does someone have a criminal record Is someone on title to land. Are there any corporations or partnerships that are of interest. Are there any tax liens or judgments?) and
2. Surveillance, Undercover operations and Review of Trash: (Is someone working under the table in a support case? Is the person abusing substances in a custody battle? Is the person committing other crimes in a custody battle? Is the person violating court orders? Is the person concealing assets? If someone is secretly cohabitating in a spousal support case?)

Over the last two decades of practice, and after having closed far over a thousand files, I can say that successful investigations are neither easy or common. Here are some examples of how they have paid off.

In the 90’s, one investigator called the police from the gas station nearby, as an adult orally copulated a minor in a public restroom. Needless to say, the custody case was immediately over in a very dramatic fashion.

In another in the late 90’s, the investigator documented how many drinks were consumed by the father prior to picking up his son. He stopped for lunch and drinks first. Then he stopped at a sports bar for more drinks. Then he rolled up on the school. This was then brought to the court’s attention that week.

In another case, relating to income and spousal support, a self-employed business owner responsible for preparing his own P&L claimed minimal income. This was contrary to the spouse’s assertions about the lifestyle of the parties and the experiences of 20 years of marriage as to his business practices. The investigators went into the business on two separate occasions and the owner admitted when negotiating price that he could charge them whatever he wanted and he could substantially discount the invoice amount if the investigators paid cash so he did not have to report it. On that same case, The investigators examined the P&L and determined that the amount of sales tax revenue he was paying the State Board of Equalization was in question and subsequent subpoenas determined his P&L was faked for the court purposes only.

Also relating to income and spousal support, on another case, the spouse submitted tax returns that substantially reduced the amount of his suspected income. During curbside collections of his trash, he actually threw away the real tax returns from his real accountant that had been filed with the IRS. The court deemed the ones supplied for their review were fictitious and pretty much under impeachment purposes, did not grant anything he wanted after that.

Relating to a custody issue, a basic background search (that is often overlooked and deemed not necessary because of the cost), revealed a criminal conviction, a suspended license which directly resulted in awarding mother more custody.

Relating to a cohabitation investigation, the wife claimed she lived alone and needed continued spousal support. A basic background search and limited surveillance along with curbside collections for over two months revealed that the female lived at a residence where she told the court she did not, utilities were in her boyfriend’s name, they had a vehicle registered together and were both named on the loan for financing. The insurance policies they shared and all of the magazines that were addressed to her at the boyfriend’s residence alone caused the Judge to rule in our client’s favor and all support was stopped. Of course, this was after the Investigator was accused of violating a law and stealing curbside trash.

However, investigations do not always payoff.

In one recent case of mine, an investigator documented a support recipient working a construction job. The investigator even documented that the deadbeat was admitting that he was the contractor on the job and willing to bid additional jobs. The court ruled that there was proof that he was working, but not at what rate or for what period of time. The court indicated that he found it not at all credible or convincing that he was only making $10 per hour (as he claimed), but ultimately ruled in the deadbeats favor as the amount actually made was not proven. The deadbeat claimed it was only a short job, low paying and that he reported that to his unemployment insurance. It did not help that the deadbeat figured out he was being followed and investigated almost immediately.

So what can we learn from this lesson? The problem in that case was first that the client did not want to pay the investigator for more than a few days. Second that the investigator got caught and Third that the investigator stopped short of finding out how much he was getting paid. The investigator actually did an excellent job of video and mobile surveillance, but got blown when his cover story did not make sense in the contact with the deadbeat. He wanted an estimate for a job but then claimed he did not know the address for the job.

In another case, the investigator was able to prove that the wife was getting her lovers mail, was routinely spending nights together, but the court did not cut off spousal support. The investigator was unable, with the short amount of time involved, to prove that the wife was getting financial assistance, or the amount thereof. Of course the wife denied cohabitation or any financial assistance.

Investigators are often financially motivated. They are paid to get results, and some will cheat to get there. At the very least, it is crucial that there be strong and careful management of their work, preferably by the trial attorney. That person knows what will help, and what is not admissible or helpful. They know the legal standards and what it is that we need to prove. In several cases, I am suspicious that investigators may have even elicited or engaged in criminal behavior or told lies to justify further investigation or win the case. However, they need to be given enough latitude to complete the case fully.

My experience is that the best investigator is the client. No one else cares as much as they do.

In one case, a client drove by to see the real estate appraiser dumping boxes of documents into the trash. The appraiser was in the middle of a major investigation for appraisal fraud. The appraiser was claiming not to make money, and was requesting spousal support. The truth was that she was doing hundreds of appraisals and using low paid trainees to do all the work. We revealed that my client got a truck and a buddy and took all the trash, and filed declarations in the court. The case settled immediately out of court.

Hiring an investigator is a high stakes gamble, but can reap huge rewards. However, it is vital that the investigators be closely managed by the attorneys.

In one case, which involved considerably more spent on investigators than would be prudent, the investigators were so aggressive and stirred up so much trouble that they eventually got themselves arrested for various charges including stalking. The case blew up in the father’s face when he got arrested as well. In another, which was not one of my cases, but was in the media, the investigator wire tapped calls and was caught. Even if you think that winning is everything, or even if you think that winning is the only thing, going to jail is losing.

The end conclusion that I come to, is that hiring an investigator is something that you do only after careful thought. The investigator must have impeccable references. The investigator should be very closely managed. Most important, the investigator must have a plan of attack and meaningful goals.

Thomas Kendall is a partner in the law firm Kendall & Gkikas, LLP, Since 1994 have successfully fought for joint share parenting plans for fit parents. During and after the divorce process, Kendall and Gkikas, LLP has the in-depth knowledge it takes to help you make these positive adjustments to satisfy the court and for you to remain a major part of your children’s life.