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Do You Need a Private Investigator for Your Divorce Case?

Do You Need a Private Investigator for Your Divorce Case?
Axelrod & Associates, P.A.

When do you need a private investigator for your divorce case?

It’s not necessary to use the services of a private investigator for every divorce case. In many cases, an investigator can help to establish the claims or defenses in your case (adultery as a ground for divorce or bar to alimony, for example).

In other cases, though, an investigator is simply not needed or would not be cost-effective. After learning about the issues in your case and what must be proven, your attorney will advise you as to whether you need an investigator and what kind of investigator is needed.

Below, we will discuss the use of private investigators in divorce proceedings, including:

  • When a private investigator can help to establish your grounds for divorce or other claims,
  • The different situations where a private investigator is useful in divorce proceedings,
  • The different types of private investigators, and
  • The process for retaining and using a private investigator in your divorce.

How a Private Investigator can Help in Divorce Proceedings

Most people probably picture private investigators sitting in a car late at night on a dark street conducting surveillance or using a combination of stealthy street smarts and cutting-edge technology to catch the wayward spouse in the act of committing adultery.

They do this, but there is also a wide range of roles that investigators might play in divorce proceedings and jobs that we may ask them to do.

Infidelity Investigations

In some cases, a person may suspect their spouse is cheating on them, but they don’t want to file for divorce until they know for sure.

In other cases, a person may know that their spouse is cheating, and they know they are going to file for a divorce, But they also know that they are going to need the evidence to prove their spouse’s infidelity if they want to get a divorce on grounds of adultery or prevent their spouse from getting alimony as part of the divorce proceedings.

This is one of the more common functions of private investigators in divorce proceedings – using cutting-edge technology, equipment, computer forensics, or just old-fashioned physical surveillance to catch your spouse in the act (or determine that there may not be infidelity) and gather the evidence you will need to prove your claims in court.

Child Custody Disputes

Child custody decisions are always based on the best interest of the child, and, in a disputed case, the parties must prove to the court what is in the best interest of the child.

This means that when a parent is exposing a child to alcohol or drug abuse, exposing a child to inappropriate people or environments, or neglecting or abusing a child, you may have to prove these things to the court to protect the child and get full custody.

In some cases, eyewitness accounts, medical records, or court records may be enough. In other cases, a private investigator may be able to gather the evidence you will need to assist the court in making decisions about custody and visitation.

Locating Missing Persons

Another common job for private investigators is locating missing people. In the context of a divorce case, this could mean a wayward spouse who has disappeared or an essential witness who is needed to prove your claims or defenses.

Serving Legal Papers

In many cases, attorneys will use the services of the sheriff’s office to serve legal papers like the Summons and Complaint in a divorce action.

The sheriff’s office isn’t going to try too hard, though. When the witness or defendant that needs to be served is avoiding service of process or cannot be located, you have a better chance at effecting service when you use a private investigator.

Trial Preparation

If your case is headed for a trial, sometimes it helps to retain an investigator to locate missing witnesses, conduct surveillance on a party or a witness, or gather other types of evidence that is needed to establish your claims, establish your defenses, or impeach the other party’s witnesses.

Social Media or Forensic Computer Investigations

Some private investigators specialize in computers or other types of technology and can be used to conduct social media investigations to gather information and impeachment material for parties or witnesses, authenticate emails or web content, or conduct other types of forensic computer investigations in preparation for a trial or hearing.

Private Investigators in Divorce Cases: How Does it Work?

If you think that you need a private investigator, how does it work?

How do you choose the right investigator, how much will they cost, and should you or the attorney pay out the retainer?

Should You Hire the Private Investigator or Should Your Attorney Retain Them?

In far too many cases, our client retains the investigator before they contact our office. It makes sense, especially if your initial goal is to confirm or debunk the idea that they are cheating.

What many people do not realize, however, is that there is no legal privilege for communications with a private investigator. Your investigator and their work product could be subject to subpoena, and they could be forced to testify against you…

Your communications with your attorney, on the other hand, are privileged. With few exceptions (if your attorney is assisting you to commit a crime, for example), your attorney cannot be forced to disclose your communications with them, and the attorney-client privilege is near-absolute.

There is also what is called the “attorney work product privilege,” which extends the attorney-client privilege to the attorney’s work product including “documents and other tangible things prepared in anticipation of litigation.” This means that your investigator and their work product are not subject to subpoena in most cases, and they cannot be forced to testify against you in most cases when they were retained by your attorney on your behalf to assist in preparation for trial…

For this reason alone, you should consult with your attorney before you retain an investigator. Your attorney may recommend a particular investigator based on the needs of your case, or your attorney may simply work with the investigator of your choosing, but, in most cases, you should let your attorney pay the fee and sign the retainer agreement with the investigator.

Choosing Your Private Investigator

How do you choose the right private investigator for your case?

Apart from considerations of experience, work ethic, and reputation in the legal community, you should consider:

  • Whether they are licensed,
  • How long they have been working as an investigator,
  • Their prior work experience (law enforcement, military, tech background),
  • The types of investigations in which they specialize,
  • Their education, training, and experience in the specific types of investigations you need,
  • Whether they are “street smart” or “book smart” (and whether that lines up with the tasks you need them to perform),
  • Their experience testifying in court,
  • Whether they will make a credible witness if they are required to testify, and
  • Whether they agree to testify if needed.

Costs of a Private Investigator

Most private investigators will require an up-front retainer. Then they will bill you at an hourly rate that varies depending on the investigator’s experience, resources, availability, and area of expertise.

This is not attorney fees – although you may give the investigator’s fee to your attorney so your attorney can retain the investigator on your behalf, this is a fee that you are paying to the investigator that is separate from any retainer agreement you have with your attorney.

Got Axelrod?

If you are considering separation or divorce, contact your SC divorce attorney immediately. Your divorce lawyer on the Axelrod team will answer your questions and help you to determine your next steps including whether it will be helpful to retain a private investigator to assist in gathering evidence and preparing your case.

Call Axelrod and Associates now at 843-258-4254 or send us a message through our website to find out how we can help.

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