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Using a Private Investigator in Your Colorado Family Law Case

Private eyeBy: Sarah T. McCain

Often in high conflict divorce or custody cases, a party will ask me whether or not they should invest in having a private investigator follow their spouse. While it may sound tempting, the majority of the time, the answer to this question is “no.” However, there may be instances in which a private investigator can be helpful.  When pondering the notion of a private investigator, it’s important to assess with your attorney when it is unnecessary and when it might be of assistance to your overall case.  The answer will certainly depend on the facts and circumstances at hand tied into what you are trying to prove.

The most common reason I hear people raise when thinking about hiring an investigator is the possibility of infidelity in the relationship. If you are looking to determine whether your significant other is having an affair, you may be looking at spending money that will not provide a benefit to the arguments you are looking to make in court.  Contrary to common belief, infidelity is generally not a factor the court is interested in hearing about due to Colorado being a no-fault divorce state.  Obviously there are exceptions to this general rule, but these are limited and should be discussed with an attorney.  Though hiring a private investigator to prove infidelity may help settle any lingering doubts about the state of your relationship, it’s not likely to be a good use of financial resources.  

If you are looking to dig deeper into financial matters tied into your divorce, a private investigator may also be a poor use of funds. There are other options available to delve into the financial dealings of the other party. First and foremost, the initial financial disclosures exchanged as part of the case should provide a basic foundation of financials information to review. If unsatisfactory, you can always make heightened requests for information by issuing formal discovery, which can provide multiple years of both bank, financial, and debt statements. If more information is needed, you always have the power to issue subpoenas.  In essence, your Denver family law attorney will have tools available to him or her to get at financial information.   A private investigator is no more equipped to ethically get at these things than an intelligent attorney or a good forensic accountant.

This leaves the question of when a private investigator should be hired?   Though proving infidelity or tracking finances are not legal endeavors for which a private investigator is needed, they can be useful in other circumstances.   For example, when dealing with issues of income and employment, an investigator might be helpful.   Some people lie about whether they are working, or where they are working.   Some people, such as a self employed contractor, might underreport his or her jobs.   Some people may claim they are unable to work due to physical limitations.  In these instances, an private investigator with a good camera might come in handy.   Though infidelity alone is not a reason to hire an investigator, a private eye might be a useful tool if there is evidence that the other spouse is actually wasting marital money on their new love interest, such as on meals, travel, expensive gifts, etc.   The marital waste would need to be significant to really make things worthwhile and the investigator would need to catch him or her in the act.

A private investigator could also be used in relation to a custody or parenting time battle.   If one parent is often absent from the home, thereby foregoing time with his or her children in order to engage in some outside, selfish activity, a private investigator could come in handy when trying to prove a lack of commitment to the children tied into visitation.    This type of information could be useful when either establishing custody or dealing with modification issues down the road.   Likewise, when there are concerns regarding substance abuse or excessive partying tied into visitation, a private investigator may be able to obtain evidence, or snap some good footage, of going to bars, driving while intoxicated, etc.   The comings and goings of unsavory characters to the other parties home might also be of value in some cases.

Finally, an investigator might be of use when it comes to finding the other party, or perhaps a witness, for purposes of serving them with legal papers, whether an original petition, a subpoena, or a contempt motion.  This is, perhaps, the most valid or justifiable reason for using an investigator in a family law case.   Actual, personal service is required for various, significant things.   Regular process servers, or the county sheriff, are not private investigators who will stake out a person or track them down.   They only work off of the information you provide them and are not automatically on board to investigate or chase down leads.   When normal service options are leading to dead ends, a private investigator and the expense that comes with them may actually be warranted.

I have provided some limited instances in which a private eye could be of assistance.    That being said, the reality is that most cases, though not all, are far less cloak-and-dagger than one might think.   The use of private investigators is just not that common.   If you choose to use a private investigator, you should thoroughly do a cost/benefit analysis to make sure it’s going to be worthwhile to your case.   An experienced Denver family law attorney can properly evaluate your concerns and provide insight regarding the soundness of your decision and what beneficial impact, if any, it will have on your case.   Finally,  if you do choose to hire an investigator to assist your case, make sure that they are willing to work with your counsel and are willing to testify on your behalf, if needed.

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