Husbands and wives typically don’t have a whole lot of faith in each other once things have dissolved to the point that they are divorcing. Most of my clients worry that their husbands are hiding assets or lying about something, and that this mysterious something will wind up being incredibly important. If you’re worried that your husband is lying or hiding something, it may be something that you really need to look into. It doesn’t always yield information that dramatically changes things, but if you have reason to suspect that there’s more information out there than you already know about, your suspicion is understandable.
Usually, I see two categories of things that husbands might try to hide. Either they’re hiding things that might give rise to their wives being able to use fault based grounds for divorce (like adultery), or they’re hiding assets that they don’t want to be divided in equitable distribution. So, let’s talk about each of these things, what it means, how you might catch him if he’s lying or hiding, and, finally, whether it’s worth all that time and effort.
Adultery or other fault based divorce
In Virginia, we’re both a fault and a no fault state, so you don’t have to have fault based grounds to file for divorce. That used to be the way it was, back in the olden days, but these days everybody has relaxed about divorce. You can always get a divorce, even if you don’t have fault based grounds. For personal or religious reasons, though, a lot of people like to have fault based grounds, even if they either, (1) don’t actually file for divorce using them, or (2) they use fault based divorce grounds to file, but ultimately switch their divorce over to an uncontested, no fault divorce.
Our fault based grounds in Virginia are adultery, sodomy, buggery, felony conviction, desertion, abandonment, apprehension of bodily hurt, and cruelty. Really, of the fault based grounds listed, the only thing your husband could really hide from you is an affair. Adultery, sodomy, and buggery are the sex based fault grounds.
What are adultery, sodomy, and buggery?
Adultery is when a married person voluntarily has sex with a person who is not his or her spouse. Sodomy broadens the definition of sex to include oral or anal sex, and buggery is an old school English word that includes sodomy (which is really just anal sex, whether it’s man on man and man and woman) and bestiality.
Remember: we’re talking about sex here. We’re not talking about hand holding, kissing, saying “I love you,” or going out on dates. If your husband has had an affair, he has to have had sex (oral, anal or vaginal) with the man or woman that he is now seeing.
So, what do I do if I suspect that my husband is having an affair?
If you suspect that your husband is committing adultery, you’re going to need three things. In order to file for divorce using adultery as your grounds, you’re going to have to have (1) a reasonable belief that the adultery occurred. That means that, in your complaint for divorce (the legal document that you file with the court to officially start your divorce proceedings), you’ll have to allege certain facts that lead the court to believe you may have a reasonable claim. Usually, in these kinds of complaints, we include information like the name (or initials) of the “paramour,” the date and the approximate location of the affair (for example, Virginia Beach, Virginia). Then, the second thing you’ll need, ultimately, is (2) proof that the adultery occurred, and (3) a corroborating witness. You won’t need all of these things just to file using adultery as your grounds, but by the time your trial comes around, you will certainly need to be able to prove the adultery. Your corroborating witness is any third party who can come to court with you and independently testify about his or her knowledge of the affair. A lot of times, we use private investigators as corroborating witnesses.
Why do I need proof, and what kind of information do I need to provide to convince the court that my husband cheated?
In Virginia, adultery is a crime. It’s a misdemeanor offense and it’s rarely (if ever) prosecuted, but it’s still a crime. Because it’s a crime, you’re required to prove that it happened before the court will grant your divorce citing adultery as the reason for the divorce.
Cards, texts, photos
Because adultery is a crime, your husband can plead the fifth if you allege it in your complaint or ask him about it on the witness stand. You’ll have to have proof, and you’ll have to get it from someone other than your husband. His admission wouldn’t be enough to prove anything.
If you’ve found cards, read text messages or emails, or come across pictures of him with another woman, all those things can be good supporting evidence, but it’s still not enough to prove adultery to a court. Besides, we’re not looking for evidence that he’s dating someone or that he’s fallen in love with someone else, we’re looking for evidence that he’s been having oral, anal, or vaginal sex with someone else.
A lot of times, private investigators are really the only way we can get the kind of information we need to really be able to prove adultery. It’s unfortunate, because private investigators are usually very expensive (all those tricky gadgets don’t come cheap), but you get the evidence you need and a corroborating witness all in one. You can always hire a private investigator to follow your husband and see what turns up. You may find out that nothing is going on (which would probably provide a certain kind of peace of mind), or you may find exactly the evidence you were looking for.
You need the private investigator to prove to the court that there is no other alternative than that the adultery happened. Luckily, that doesn’t mean that you have to actually get a picture or a video of your husband actually in the act of having sex with someone else, but it does mean that you have to show that your husband had the opportunity, and that, in all likelihood, that’s exactly what happened. Typically, a private investigator witnesses a couple entering somewhere (like a home or a hotel room), observes all the exits during the course of a night (to make sure that they didn’t slip away undetected), and then re-emerging the next morning. It’s pretty likely that there was some hanky panky if your husband went into another woman’s home or hotel room and stayed there with her overnight, and that kind of evidence is usually exactly what the judge is looking for.
You can also be your own private investigator, especially if you bring a friend or two along with you to be your corroborating witness. The court doesn’t care who does the investigating; it really is only concerned with the type of evidence being provided. If it’s sufficient to prove adultery, it doesn’t much matter how it was obtained (though you can’t do anything criminal yourself, like open his mail or hack into any of his password protected accounts, so tread carefully).
Obviously, though, being your own private investigator could be incredibly dangerous, so you have to tread carefully. If you’re at all concerned for your safety or well being (and if you’re snooping after someone in the middle of the night who is about to be caught doing something he shouldn’t be doing, you probably should be at least a little concerned), it’s probably a much better idea to leave the investigating up to the professionals.
If you do choose to do a little bit of investigating on your own, you’ll need the same type of evidence that a private investigator would need. You’ll need to see him (and her) go into a hotel room or house, watch all the exits overnight so you know they haven’t left, and photograph them leaving in the morning. You’ll want to have a friend present to be sure that you’ve watched all the exits, and so that you have a corroborating witness. (You can’t be your own corroborating witness; you need a third party.)
If you’re afraid that your husband is hiding assets, on the other hand, that can be a little trickier to find. This isn’t a ground for fault based divorce, it’s just something that would come into play during equitable distribution. You can file on fault grounds, if you have them, or you can file on no fault. Either way, it doesn’t matter. You’re still well within your rights to try to find out whether there are any hidden assets.
If he has an offshore account in the Caymans or a Swiss bank account, you’re probably not going to find that money. If it were that easy, these kinds of accounts wouldn’t have the kind of international appeal that they do. These banks protect their customers, and there’s not a lot we can do to find the information. Still, if you’re worried, read on for more information.
What kinds of things should you be looking for?
If you’re concerned that your husband is lying or hiding assets, you’ll want to have some sort of an idea about where to look to find it. If you’ve received mail from a bank where you don’t have an account, or seen any other suspicious correspondence, you should probably take it directly to your attorney.
Subpoena Duces Tecum
For bank accounts and other records, we can sometimes issue what is called a subpoena duces tecum. In plain English, it’s a request for physical records. We can send it to lots of places, like cell phone or credit card companies. We can also send it to banks, if they happen to be located in the state of Virginia. If the bank is in another state, there’s not much we can do. Talk to your attorney about your options.
Is it worth it?
Obviously, it’s a lot of work to track down information that your husband doesn’t want you to find. It can be nearly impossible to do if you don’t have any idea where the information might be hidden.
As far as adultery is concerned, the court can consider it as a negative nonmonetary contribution to the marriage. Because of this, theoretically at least, the judge could use it to award a distribution of property that is more in one party’s favor than the other. In most cases, this doesn’t really happen, but it could. To determine whether it might be worth finding the information in your unique case, it’s best to talk to an attorney. Be sure to talk to someone BEFORE you hire a private investigator, too, because you’ll want to know whether the means will be worth it in the end, and a lot of times your attorney can give you a good idea about whether it might be worth it ahead of time.
If you were to find hidden assets, they would be divided in the same way as the other marital assets, usually close to 50/50. Unless the property was somehow separate (like, it was a bank account he had prior to marriage, or was money from an inheritance), it would be divided. Ask yourself whether you think the amount that you might find is really worth the money you’d spend trying to track it down. If you’re in doubt, talk to an attorney.
In most cases, an attorney can give you a lot of guidance about whether or not it might be worthwhile to you to spend a lot of time and energy trying to track down hidden information. It’s a very case-specific determination, so you’ll want to be sure you talk to someone before you make any rash decisions. For more information about what to do if your husband is lying or hiding assets, or to find out ways to protect yourself, give our office a call at (757) 425-5200.