Your Family Law Advocate Blog

One of our roles as attorneys is to guide you towards clear and strategic thinking in the process despite those charged emotions, and focus efforts on end goals that prioritize your legal position over your emotions.

Suspicions of a spouse often lead clients to inquire whether they should hire a private investigator in divorce and child custody proceedings. The answer to such inquiries is not black and white. Private investigators can serve an important purpose in family law proceedings. But their involvement is not without risk.

What Can Go Right

While Michigan is a no-fault divorce state, which means that “fault” need not be established to get a divorce, the factual circumstances leading to a divorce can affect things like apportionment of assets, spousal support, child support, and child custody. Since divorce often involves contradictory “he said/she said” arguments, private investigators can play an important role in getting to the true facts.

For example, it is relevant to discover whether a spouse has been unfaithful, financially irresponsible, abusing drugs, or engaged in other harmful behaviors. This type of information may not be able to be discovered through standard legal discovery processes, and, therefore, the use of a private investigator may be necessary. Indeed, an experienced private investigator will have the expertise, technology, and legal leeway to surveil, track locations, take photographic or video evidence, and provide reports that support such suspicions.

In some cases, a client may come across information about their spouse “through the grapevine” that, if true, would be relevant to the case. Such information needs verification in order to be used in a court proceeding, so a private investigator could be employed to either confirm or debunk the claims. This typically involves the private investigator tracking down the source of the information to assess the veracity of the claims. Additionally, the private investigator’s impression of the information source can be a vital component in your strategic decision of whether to introduce the information into the proceedings.

Furthermore, private investigators have means and methods to gather information that are not otherwise available. Private investigators obtain evidence, conduct surveillance, perform background checks, and are able to perform other tasks that unlicensed individuals cannot, such as, placing a GPS device on a spouse’s vehicle.

What Can Go Wrong

Hiring a private investigator in a divorce proceeding can be beneficial, but it’s not a decision to consider lightly. Making the decision with your attorney will help you to weigh issues such as the discoverability of the investigator’s report, duty to disclose to opposing counsel, admissibility of evidence and so forth.

In some cases, despite there being compelling reasons to hire a private investigator, other considerations outweigh the potential benefits. In particular, in situations in which the spouses have a relatively amicable relationship, and wish to maintain a level of trust, uprooting truths based on your suspicions and then making those truths known in the form of having hired a private investigator will almost certainly turn things adversarial. Communication and cooperation may cease at that point.

Lastly, keep in mind that you may need to be careful of what you wish for. Good investigators will find everything: the good, the bad, and the ugly. Social media has become a treasure trove for private investigators and the great undoing of many a litigant in a divorce or custody case.

Investigators may obtain photo or video evidence of your significant other conducting extra-marital relationships, using illicit drugs, brandishing weapons inappropriately, or being somewhere they are prohibited from being in accordance with existing court orders. If something is online, chances are the investigator will find it, and it may bolster your case. But it may also bring to light some very unflattering truths that, even in a dispute, you may not wish to be made public or shared with your children.

Bottom-Line: The Pitfalls and Potential

There is no one right answer to the question of whether an individual should hire a private investigator during a divorce case. Every situation is different.

If you are considering hiring a private investigator, set aside emotion and apply an intellectual standard to the question. Think through the entirety of the decision, especially the legal strategy. Consult with an attorney before you do anything you might later regret.

Finally, know that what you are getting into—beyond the emotional turmoil and discomfort of the moment—this is a legal proceeding, one with high stakes that far exceed and outlast the short-term passions that are likely to arise along the way. When it comes to hiring a private investigator, tread cautiously, and trust the judgment of your attorney as to whether it’s the right move for you.

If you have questions about this article and would like to know more about the pros and cons of hiring a private investigator in a divorce or custody case, contact Andrea Badalucco or other member of Foster Swift’s family law practice group.