In a contentious divorce, the number one priority is to present facts that back your claims. The challenge of swaying a judge’s rule in your favor depends on how strongly you can present your case, particularly when there are disputes over important issues, such as who deserves sole custody of your children. Though everyone going through divorce hopes theirs will never come down to such a bitter and feuding state, spouses are more often turning to deceptive methods of gathering evidence during a hostile dissolution.
The idea of using video or audio recordings to prove a point in court is nothing new, but it is becoming easier as technology advances and laws are struggling to keep up.
A perfect example comes from a 2012 article, where a man who became suspicious of his wife set up hidden cameras and microphones in their home, and also installed computer software that copied her emails and Internet chat conversations. Though the judge threw the evidence out in their divorce, it is difficult to determine in continuing lawsuits if any state or federal wiretapping laws were violated as the laws are currently written.
Although this is an extreme example, you must be careful and take into consideration the legality of any surveillance you decide to undertake. Video evidence can be hard to rebuke, such as a recording of your spouse’s violent or neglectful behavior towards your children once outside the courtroom, but it can also be difficult to have accepted as admissible evidence if certain privacy concerns are not taken into account.
How you go about obtaining the evidence is key and the laws can vary based on state and even local jurisdiction, so it is recommended that you speak with an attorney before beginning or continuing any personal surveillance. Note that 38 states only require single-party consent, meaning so long as the person recording is a part of the exchange, they do not have to let the other person know the conversation is being recorded.
Some people will also consider hiring a professional private investigator to collect the evidence for them, because having a third-party expert witness may add extra credibility. While a private investigator can be effective in certain situations, this method does come with its own set of pros and cons.
- Private investigators are required to be licensed in most states and can be used as an expert witness.
- While usually not granted any additional authority over ordinary citizens, private investigators generally come from a background lending to greater investigative skills, such as former police or former military. They likely know their way around the useful public databases much better than the average person.
- They can find hard evidence to support claims of adultery, drug and alcohol abuse, creating an unsafe environment for children, violating any court orders and attempting to hide marital assets, which you may not have the resources or know-how to discover on your own.
- They tend to be very expensive, and like your attorney, will usually charge by the hour. If they spend a long night of surveillance and come up with nothing, that bill can rack up pretty quick.
- They cannot operate outside the law, unlike what you may see on TV or read in novels. Private investigators are not spies, and do not have the authority to trespass, tap phone lines, or any other illegal form of gathering information.
- If they do collect evidence illegally, it will not be admissible in court. Additionally, without attorney guidance on exactly what you need, the evidence found can be irrelevant to the argument you are trying to prove making it a complete waste of time and money.
State lines can also limit private investigators. While some states participate in reciprocity agreements, where out-of-state licenses are recognized, that is not always the case.
For example, if a private investigator follows a client’s spouse from Missouri to Florida to see if they are really going on a “business trip” and not some romantic rendezvous, but Florida does not recognize the license from Missouri, surveillance activities cannot continue. If the private investigator decides to do so anyway, not only can he or she be sanctioned by both states, but the attorney can also be sanctioned in court and any evidence found can be thrown out.
Additionally, like in the example above, private investigators are often hired for the purpose of verifying that a spouse is having an affair. This can be a pointless expense, as there is usually sufficient evidence available to prove the affair without surveillance — people just feel comforted by getting independent verification. Using a private investigator for this purpose can be a costly method of slightly relieving the sting of betrayal.
Not to mention with the prevalence of no-fault divorce, having a paramour on the side may not have nearly as large an impact on the proceedings as one might think.
Except to verify compelling circumstances, such as a known dissipation of assets that needs hard proof or child abuse that only deceptive surveillance can prove, courts tend to frown upon personally spying on your spouse or hiring a private investigator to snoop on your behalf.
Although it may be tempting and easier than ever to “catch someone in the act,” it is best to avoid bringing up the complex issue of privacy unless it is vitally important — it may only serve to add additional expense, create unnecessary animosity with the opposing party and hurt your case if the information is found to be obtained illegally or irrelevant to your argument.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”