Private Investigators in Tennessee Divorce Cases

Why would anyone need to hire a private investigator for their Tennessee divorce case?

Private investigators in Tennessee divorce cases

There are many reasons why hiring a “Private Eye” could help the case. Perhaps the best known reason, and the basis for many a cinematic drama, is to rustle up evidence of an extramarital affair. In Tennessee law, adultery is one of 15 grounds for divorce.

When adultery is (or will be) alleged as grounds for divorce in a party’s pleadings, the spouses will usually have an opportunity to agree to different grounds. Most commonly, those other grounds could be irreconcilable differences or inappropriate marital conduct. But when spouses do not agree to grounds, then the spouse seeking a divorce because of the other’s adultery has the burden of proving the allegation is true by a preponderance of the evidence. Sometimes spouses point the finger at each other, both accusing adultery. Each trying to gain advantage in the divorce – a more favorable alimony award or, perhaps, a property division with a finding of dissipated marital assets. Private investigators really can have an impact on how the case proceeds.

Adultery is not the only reason to hire a private investigator, though. If custody is contested, then there may be cause to get in front of the matter by collecting documentation and evidence. More on this later.

Evidence Proving Adultery By a Preponderance: Proof of Sexual Intercourse

If adultery had to be proven by catching a spouse literally in the act, most cases would be sorely lacking in proof. Fortunately or unfortunately, in Tennessee law direct evidence of “adulterous intercourse” is not required. Circumstantial evidence alone can support an adultery claim. See Hicks v. Hicks, W2001-02931-COA-R3-CV (Sept. 29, 2003).

In other words, it is not necessary to photograph a spouse in the sexual act of adultery. However, evidence is still required to, at least circumstantially, show the extramarital affair occurred. The distinction between direct and circumstantial evidence is akin to the difference between, by way of example only, a video from a camera mounted over the bed at the motel room, and a video of the spouse meeting someone at a bar and going into the hotel arm-in-arm.

Evidence, that’s still the key. Photographs, statements, emails, bank account withdrawals, credit card purchases, these might all help circumstantially prove adultery. How potential evidence is gathered can profoundly affect the outcome of the case.

As a word of caution, what a spouse thinks is going on may not be what is actually happening. The situation could be innocent. It could be just as expected. Or it could be wholly unexpected. For instance, a client might expect that the case involves excessive spending on a paramour only to find out there is no lover, but there is a casino gambling problem. Or those late night activities amount to a second job, maybe legal, maybe not. One never knows for certain what a private investigator will uncover. If the truth could be even worse than, well, worst imaginings, is it best not to go there at all?

Private Investigations and Settlement Negotiations in Family Law Cases

A private investigator’s report can be very influential when negotiating divorce issues. With the right kind of information, the spouse may be in a better bargaining position. What type of alimony? How should property be divided? How much money should be placed in the college fund? Information obtained during an investigation can be very useful.

Importantly, the relationship between the private investigator and the client is a confidential one. With documentation, videos, and photographs following the investigator’s surveillance, the client is in a position to make an informed decision about the direction divorce negotiations might take. Knowledge isn’t just about power, it’s about choice. Sometimes the information obtained, or the lack thereof, can answer the question of whether to file for divorce at all and what grounds should be alleged. Or alternatively, whether to pursue different avenues such as marriage counseling or an action for separate maintenance.

Should You Try To Be Your Own Private Investigator?

No. That is not a good idea. A trained professional who is a licensed investigator will know where lawful information gathering ends and privacy violation and criminal activity begins. Most lay people do not know the legal limits and run the risk of violating federal and state laws – namely, spying and wiretapping laws.

Electronic snooping, recording the other spouse’s telephone conversations with people, putting a GPS tracking device on a spouse’s car, these actions may violate privacy laws. Two of those privacy laws should come to mind immediately: the Electronic Communications Privacy Act (ECPA) of 1986 and the Tennessee Wiretapping and Electronic Surveillance Act. Ignorance of the law is no excuse for violating these statutes. The last thing the divorcing spouse needs is a felony prosecution, criminal fines, or a civil lawsuit. Especially when, at the end of the day, the evidence may not be admissible in the case at all because it was illegally obtained.

Generally, a private investigator’s surveillance keeps the target in view while video recording. This may be covert, depending upon where the recording occurs. Understand that a private investigator does not have a license to break the law any more than the client does.

There is yet another reason why a spouse should not attempt Private Eye work. It could be dangerous. Do not try to tail the suspected paramour in a car. Do not pose as a repairman or housekeeper at the hotel. Do not bug the other spouse’s iPhone. Hire a private investigator who knows what the legal boundaries are. Who is trained to deal responsibly with various situations in the field.

Feeling compelled to be a free Private Eye? Save a few dollars and get the lowdown? Definitely talk to a lawyer first. A few dollars saved by taking matters into your own hands, tapping the wife’s cell or reading the husband’s private email messages, could be a criminal act and be far more costly and very damaging to the case.

There are many reasons why hiring a professional investigator, or PI, is the best route to take. For one, PIs have access to informational data bases that are not made available to the general public. They are also trained to analyze raw data and provide what they find in a report that is useful in the case. This is what experienced PIs do and do well.

Evidence of adultery, that’s the key

What Should You Do?

Private investigators frequently help family law attorneys prepare cases. It is also true that each party may hire their own investigator. Opposing PIs are possible with each spouse looking for dirt on the other.

The client’s attorney may recommend hiring a private investigator with relevant experience investigating child custody, adultery, hidden overseas assets, or whatever the issue requires. If a spouse wants to gather information that will be useful for evidentiary purposes in court, then that information needs to be obtained lawfully. Otherwise, efforts may be wasted or worse. Heed the lawyer’s advice about what to do and what not to do.

Investigating Divorce Issues Beyond Adultery

Beyond adultery, there may be other activities that a private investigator can help uncover: gambling, drug addiction, illegal acts, bigamy, illegitimate children, concealed property, and so on. The investigator’s report may be admitted in court and the private investigator may testify at trial.

What Can a PI Do for Your Case?

A private investigator’s report could actually help keep the cost of the divorce down. How? By encouraging settlement and, if trial becomes necessary, by providing the proof that leads to the best possible outcome. There is no guarantee that hiring an investigator will save money in the divorce, but there is plenty of anecdotal evidence out there that it “encourages” productive negotiations. And settlements are almost always the lesser expensive route with more satisfying results than a full blown trial.

Who Are Private Investigators?

Understandably, most clients have no experience working with private investigators. In Tennessee, private investigators must be licensed and certified. Every individual who engages in the business of private investigation or who accepts employment to obtain or furnish information in a divorce case about the “identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputations or character of any person” must be licensed. This means passing an examination designed to measure knowledge and competence in the investigations field. To maintain a license, the person must pay related fees and complete 12 hours of continuing education every two years.

To qualify for licensure, the person must be a U.S citizen or resident alien, 21 years of age, be of good moral character, and be fingerprinted for a criminal history check by the Tennessee Bureau of Investigation (TBI) and Federal Bureau of Investigation (FBI), among many other requirements.

Hiring a Private Investigator for Your Divorce

A divorce attorney with years in practice will have worked with several private investigators and can make recommendations. A trained Private Eye will know all the “signs” of infidelity, gambling, and a number of other truly concerning problems. Consider the following clues to a spouse’s extramarital affair:

• Working late
• Clandestine meetings
• Secretive cell phone calls
• Unavailability when called
• Changed habits
• Dressing differently
• Spending differently
• Little interest in spending time with family
• Increased social media activity
• Changes in bank account activity
• Changes in credit card activity

If the case involves a cheating spouse or the other parent in a child custody case, then a private investigator can usually assist. Certainly, the hiring spouse’s legal strategy should guide the investigation, setting goals and limitations. To get started, the PI needs some background details, as much as possible, in order to limit the scope of the investigation and hone in on what leads to follow. For example:

• Is the extramarital relationship work-related?
• Is the paramour known?
• When do the two lovers connect? Where? How often?
• Are drugs involved? Is excessive alcohol consumed?
• Is someone caring for the child who should not be?
• Is the child in an unsafe environment as a result of the other parent’s activities?

Most private investigators will charge by the hour, but that is something to discuss during the vetting process. How much per hour will vary and, of course, will depend upon the experience and type of work to be done. A request for a retainer would not be unusual.

Not every divorce or child custody case requires hiring a private investigator, but many do. Get a referral. Find out who your attorney recommends given his or her legal strategy and what needs to be proved in the case.