Should I be my own private investigator in my Virginia divorce?

When your husband is up to something sneaky, and you suspect that information related to his sneakiness will be beneficial in your divorce case, it’s tempting to want to try to gather every bit of evidence that you can yourself. Private investigators are expensive to hire (in fact, in many cases, their retainers rival what divorce lawyers charge), so it’s even more appealing to think that you could just do a little bit of reconnaissance on your own. Right? I mean, why even bother hiring a private investigator; if it’s just a matter of staking out his house, you can do it on your own, or with a good girlfriend. …But there are definitely risks involved, and you should be aware of a couple of things before you grab your digital camera and rent a car for your subterfuge.

Adultery Cases in Virginia

Most of the time, people facing divorce cases use private investigators to prove adultery. As far as any of the other fault based grounds are concerned, having the kind of evidence a private investigator can gather is less relevant. Though I suppose we could use it in cases where domestic violence or some other fault based grounds are an issue, in most cases, I see it used for adultery.
Why? Well, in Virginia, adultery is a crime. It’s a level 4 misdemeanor, and, as a result, it carries with it certain civil and criminal penalties. If you want to get a divorce using adultery as your grounds, you’ll have to have a whole trial—and prove to the judge, with clear and convincing evidence, that adultery exists. Divorce is civil, so whether it’ll be prosecuted is a different matter entirely (that would be a separate criminal case, and, you should know, adultery is rarely, if ever, prosecuted), but you’ll still have to meet a higher burden of proof for that reason.
You’ll also need a corroborating witness. It’s the same in a no fault divorce, too; when you go in for your uncontested divorce hearing, you’ll bring along a corroborating witness who can testify regarding how long you’ve been separated and so on (or, alternatively, if yours was a divorce by affidavit, they could testify in the affidavit—but you’d still need a corroborating witness).
See any problems? By being your own private investigator, you may get evidence that might be usable at trial. It’s possible. But you wouldn’t have a corroborating witness. Oftentimes, we actually use the private investigator as our corroborating witness, because his (or her, of course) testimony can be so useful in court. You could testify about what you saw, but you wouldn’t be a corroborating witness; you can’t corroborate your own testimony.
So, of course, the corroborating witness thing is a problem that you’ll run into if you do your own private investigating. But that’s not the only problem.

Negative Monetary and Nonmonetary Contributions in Adultery Cases in Virginia

So, technically, the fact that your husband committed adultery is a negative nonmonetary contribution to the marriage. (If he spent money wining and dining a mistress, it might also be a negative monetary contribution to the marriage.) The judge is allowed to look at the negative and positive monetary and non monetary contributions of each party to the marriage in making a decision regarding how all the assets and liabilities will be divided.
We’re an equitable distribution state (rather than a community property state), so the law doesn’t automatically assume 50/50. The judge can look at each case on a case by case basis to make a determination of what’s “equitable” (please don’t let me hear you say the word “fair”) under particular circumstances.
Still, adultery is far from a golden ticket. It absolutely, positively does not mean that you’ll receive more out of the settlement. Is it possible? Yes. Do I see it happen? Um…no.
Why would you spend MORE on a private investigator, only to have a judge tell you that things will be split roughly 50/50 anyway? It’s probably not a good investment.

Likewise, why would you go to all the time and trouble yourself if it’s likely not going to make a difference? Sure, it might cost less (and, again, that might be an argument for doing it yourself), but you’ll probably have some expenses associated with your espionage. If you’re talking about renting a car, buying equipment, taking time off of work, or anything like that, costs can add up pretty quickly. And if the juice ultimately isn’t worth the squeeze…. What’s the point?
I recommend that, before you decide to spend hours and hours (because that’s often what private investigating is) sitting around waiting to catch him doing something wrong, you talk to a divorce lawyer one on one about your case to make a decision about whether doing your own private investigator work will really be worth it in the long run. Chances are it won’t be worth it, and, even if it is, we’d still need a corroborating witness to prove it to the court. Talk to your divorce lawyer about your goals, and how best to meet those goals. Never take it upon yourself to take a bunch of unnecessary steps without consulting with an attorney and coming up with a case plan that takes your goals and specific situation into account.

Always, always, always remember your personal safety

It may be tempting to do your own private investigating, but you may also be placing yourself in danger—a fact that you’d be unwise to overlook.
If you have to sneak around following your husband to find information to use against him in trial, chances are pretty good that he’ll be mad. You know him better than I do, of course, but it would not be a good idea for you to place yourself in a situation where your personal safety might be at risk. If he’s going somewhere sketchy, you could open yourself up to problems just by being there (sitting, alone, in your car in the dark in a shady neighborhood). But you could also open yourself up to physical assault from your husband if he catches you.
It’s dangerous. And, because it’s dangerous, I really can’t recommend that you do it. Even if yours was one of the rare cases where I felt that the evidence the private investigator could provide to us would be useful, I wouldn’t want to think of my client out there trying to gather the information herself. It could save you a couple of bucks, but it could also be a huge mistake. I really can’t recommend that you do it yourself.
Talk to a divorce lawyer first. Come up with a customized case plan. Talk about whether having evidence from a private investigator would even be useful in your case. Ask all of your questions. Do all of these things BEFORE you take it upon yourself to go out into the world and do something quite so dangerous. For more information or to schedule an appointment with one of our attorneys to talk about your case (and whether a private investigator might be useful), give our office a call at (757) 425-5200.

 

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