Divorce: The Essential Role of a Private Investigator
(Published in Divorce Magazine October/November 2005)
By: Rick Johnson (1500 Words)
Jane has just filed for divorce and she’s talking to her friend, Nancy, who went through her own divorce less than a year ago.
“Who’s your attorney?” asked Nancy.
”Joe Legal,” said Jane. “Melanie recommended him.”
”Don’t remind me,” said Nancy. “Brother, did she ever take a ride in that divorce. So, who’s your investigator?”
”Yah, you know, Investigator, as in somebody to make sure that jerk husband of yours isn’t spending his visitation time leaving the kids with some dimwit, bimbo girlfriend with an alcohol or drug problem… isn’t hiding assets so he can lie about maintenance and child support.”
“I didn’t think…”
“Well, you ought to start thinking. Did you think makeup really could hide those bruises?” said Nancy, shaking her head.
Jane dropped her gaze.
Nancy has it exactly right. Most divorces move along without great difficulty. Both parties have a mutual desire to resolve family and economic issues as fairly and as reasonably as possible, but not always.
“Did you have an investigator?” asked Jane.
“Sure did,” said Nancy. “The thing is, I really was mad as hell. First thing I wanted was to get somebody to watch Mr. Jackass. Maybe get him drinking and driving… call the cops on him. Get pictures of him and his girlfriend.”
“So, what happened?” said Jane, smiling.
“I was lucky enough to find a PI who took the time to listen and point me in the right direction,” said Nancy.
The right direction often isn’t obvious, especially in the heat of the moment.
Not every divorce needs an investigator. But many do. Not every investigator is qualified for the work. But many take it on, anyway.
That’s part of the basic problem that anyone in the middle of an emotionally charged divorce absolutely must avoid. In a state like Colorado, where investigators are not licensed or otherwise regulated, the potential for unnecessary, ineffective, even inept investigative work is very real.
Think of some of the important problems… drugs, excessive drinking, stalking, battering, child abuse, sexual abuse, criminal conduct of all kinds. And any problems are complicated when a third party is involved, especially where children are exposed to the risks presented by that third party.
An investigator must be more than a domestic mechanic, whose first recourse is to surveillance. Sometimes, for specific purposes, in keeping with what the client’s attorney’s needs, surveillance may be a useful option – but It almost never is a first option, especially when a hurt and angry spouse with retainer in hand is the primary motivation.
The effectiveness of a background investigation depends on the type and extent of the information that’s available to begin with – A name, including, a middle initial, a date of birth or approximate age, an address.
In fact, the first obligation of an investigator in a domestic situation is more akin to the work of a counselor, even a therapist upon occasion.
And frankly, in family matters, the client, even the attorney, may have a completely inaccurate view, not only of what an investigator can do to help, but what should be done to help.
Probably half of the people who come to an experienced investigator for help with a family matter leave without hiring the investigator, because they come to realize that what they thought they wanted was unreasonable or simply unproductive. If they do hire an investigator, it is for a good and useful purpose.
The important considerations are:
When to hire an investigator
How to find and hire a qualified investigator
The importance in most cases of the attorney as the client, not the spouse
What options may produce useful results
What common options generally may be of no real value
And that’s just the tip of the proverbial iceberg; for example, a client almost always wants to know the name of the third party that broke up the marriage. That’s a bad idea. We may see a need to identify the third party, perhaps even obtain background information on the third party, especially when children are involved, but only rarely do we disclose the identify of the third party, and then its to the attorney, not the client.
In Texas not that long ago, an investigator on surveillance called the female spouse and informed her that the husband was in a hotel with another woman. The female spouse arrived. And, when her husband left the hotel, she drove her Mercedes into him and then back and forth over his body a half a dozen times. She was convicted of murder and the investigating company was sued for substantial damages.
A skilled but unethical investigator may skirt the law to obtain information that isn’t legally available without a subpoena or court order. The Internet is littered with the sites of so-called Private Investigators who claim to be able to obtain bank records, unlisted telephone numbers and cell phone records, utility records, medical records, all manner of confidential information – some of which is useful in a divorce and some of which is not. There are investigators willing to illegally intercept and record telephone and cell phone calls. There are investigators who will trespass to obtain information, even conduct surveillance in a way that crosses the line to stalking.
It’s important and worth repeating: You need to know what is useful and what is not… what is possible and what is not.
One of the more possible and useful options is the background investigation to discover what legally can be known about a third party, especially where children are involved and where they will come into close contact with that third party. But again, If this information is useful, it’s useful for the client’s attorney, not the client.
The effectiveness of a background investigation depends on the type and extent of the information that’s available to begin with – A name, including, a middle initial, a date of birth or approximate age, an address. Even an unusual first or last name can be sufficient. A license plate number can be used to identify the vehicle owner’s name, address, date of birth. A date of birth is essential in arrest and criminal court inquiries. A name and address can be used in a national records trace to identify a history of addresses. That history identifies jurisdictions where additional research can be conducted. A search of court records, including Federal court cases, can identify cases that may contain useful personal and financial information.
Third parties aside, it isn’t safe for one spouse to assume that he or she knows everything there is to know about the other spouse. Everyone has a secret life to some extent. Sometimes, the clues to that secret life are clearly evident. A man who batters his wife isn’t likely to be doing it for the first time. The unexplained and repeated loss of financial assets may indicate a serious gambling problem. Unexplained absences from the home don’t always mean there’s another woman. Of course, sometimes they do.
A typical background report can include a Colorado statewide arrest report, Colorado civil and criminal court records checks, including a check of the sexual offender registry, a check of Federal civil, criminal, and bankruptcy court records, real property records, Colorado motor vehicle records, and occasionally other elements.
Whatever the case, the goals need to be clearly spelled out. The plan of action needs to be carefully tailored to meet those goals.
Whether those considerations are met may… and often does… depend on the investigator employed to do the work. At a minimum, that investigator must carry errors and omissions insurance. His or her employees should be covered by worker’s compensation insurance. The company should be a real, legal entity… a partnership, limited liability, company, a corporation, or at least a formal sole proprietorship. Colorado doesn’t license private investigators, but investigators in Colorado can be licensed in other states.
“So, how do I get all of that information?” asked Jane, shaking her head.
“You ask questions,” Said Nancy. “Are you licensed anywhere? Do you carry insurance? Are you a formal business… a corporation, partnership, sole proprietor ship? Do you have a Web Site? Are you affiliated with a professional association? And even if you get all the right answers, you should ask for a meeting at the Investigator’s office before making any kind of commitment. Actually, the investigator should invite you to a meeting.”
“Why a meeting?” asked Jane.
“Because a meeting is when you really get a chance to size up the investigator, not to mention his operation,” said Nancy. “but mostly, it’s about the investigator, whether he asks the right questions, whether you feel comfortable with the investigator. And it gives the investigator a chance to size you up, to find out what you need, not just what you want. Oh, and the investigator better ask you whether you have an attorney and what your attorney thinks about hiring an investigator.”
“Well, I guess I had better talk to my attorney first, right?
“That’s a good start,” said Nancy. “In fact, your lawyer may even be able to refer you to an investigator he’s used in the past, someone he trusts.”
Jane and Nancy… it could just as well have been Bob and Fred. Divorce is an equal-opportunity catalyst for trouble. As a society, we’re long past that time when men held fairly exclusive rights to the epithet of “Extramarital Scoundrel.” No matter how it begins, virtually every divorce carries the potential for legal, financial, and emotional problems that the parties, themselves, can’t resolve.
That’s why there are attorneys and psychologists.
And that’s why there are investigators.