Can Documents Obtained by a Private Investigator Be Requested as a Discovery in a Divorce Case?

By Beverly Bird

If you suspect that your soon-to-be ex will go to any and all lengths to dig up information to influence your divorce case, you're probably understandably concerned. Even if you have nothing to hide, you might fear that if she hires a private investigator, her lawyer could turn molehills into mountains. Although she has a right to hire an investigator, you also have the right to know exactly what information that investigator provides to her, usually well in advance of trial.

The Discovery Process

Discovery is just what it sounds like: You discover what information your spouse possesses and what she might possibly present at trial. The only real limitation is that the information sought must be pertinent to your proceedings. Various methods are commonly used to get this information such as subpoenas, interrogatories, requests for documents and depositions. Subpoenas are issued to third parties -- such as private investigators -- who may possess documents or information relating to your case. A request for documents demands that your spouse turn over information that she has in her possession, such as documents a P.I. already turned over to her.

Other Disclosure Requirements

If you're not aware that your spouse has hired a private investigator, this prevents you from asking for the documents as part of the discovery process. She has a legal obligation to provide you with information anyway. She usually can't spring the documents on you at trial without warning. If the investigator has come up with sensitive information -- or even information that's not sensitive -- she must serve you with a copy of the investigator's reports. This is true even if she decides not to use them at trial for some reason, such as because they incriminate her as well.

Divorce is never easy, but we can help. Learn More

Issues of Timing

Your soon-to-be ex must serve you with copies of all information that she may use at trial within a statutory period of time. For example, in Arizona, she must provide you with her evidence at least 60 days in advance. If she doesn't, the judge may not allow her to present the evidence, ruling that it’s inadmissible. An exception to this rule exists if the investigator's documents pertain to custody matters. In this instance, the welfare of your children usually trumps considerations of timeliness, so the judge can consider the information even if you haven't previously seen it. If she gets away with surprising you and leaving you scrambling to defend yourself, the judge can impose sanctions on her for breaking the rules of discovery, such as fines or other punishment, even if he doesn't preclude the information from consideration.

Investigators Can Testify

Third parties such as private investigators can -- and often do -- testify at divorce trials, so it's possible that your spouse or her lawyer may not serve you with written documents ahead of time. They'll simply present the private investigator as a witness. Your spouse must still give you warning, however. Most states require that spouses exchange witness lists before trial, disclosing the persons they intend to call to testify, and about what each individual is going to testify. If you find an investigator's name on her witness list, you can depose him ahead of time. This involves meeting with him and asking him questions in the presence of a court reporter who takes down every word. The court reporter will provide you with a transcript of the dialogue, which you can then present as evidence at trial if he says something that's beneficial to your case. You or your attorney will also get an idea of what questions to ask him at trial when you have the opportunity to cross-examine him.

Divorce is never easy, but we can help. Learn More
Subpoenaing Witnesses for a Divorce Trial

References

Related articles

What to Expect in Your Final Divorce Hearing on Your Trial Day in South Carolina

South Carolina encourages spouses to reach an agreement on the terms of their divorce, such as property division and child custody, but you and your spouse may not be able to mutually agree on all terms. If your settlement negotiations fail, it will be up to the court to make these decisions for you based on evidence it receives from your filed paperwork and during the divorce trial. The court cannot consider evidence unless it’s properly presented, so it is important to understand the trial process.

Divorce Attorney Consultation Questions

With a few exceptions, most divorce lawyers can adequately get the job done. The vast majority of divorces never go to trial; spouses generally come to terms regarding a settlement with the help of their attorneys. A lawyer’s courtroom savvy and expertise may not be as important as her ability to negotiate and to communicate with you. Before you consult with anyone, make sure she specializes in family law. Then ask questions to determine whether she’s right for you and your particular case.

What Not to Say When Tesifying in Child Custody

Testifying can be terrifying when everything hangs in the balance and so much depends on your words. If you're litigating custody of your children as part of your divorce, however, you'll have to take the witness stand. Sometimes, if you don't have a lawyer, the judge might let you speak from your seat, but you must still do so under oath and your spouse's attorney can still ask you questions. The good news is that while you have to answer under most circumstances, you don't have to do so quickly or immediately. You can take a moment first to think about what you’re about to say.

Get Divorced Online

Related articles

Can a Lover Be Forced to Testify at a Divorce if the Affair Is Known?

As a general rule, if someone has an affair with a married individual, she should brace herself for an appearance in ...

Divorce Discovery Process

In between filing for divorce and the final trial, divorcing couples may use discovery to get as much information as ...

Laws on Falsifying Divorce Documents

Life is full of temptations. When you're going through a divorce, you may feel like you're under assault and on the ...

Income Discovery in Family Law Cases

If you and your spouse are divorcing, you usually have only one chance to get the terms right. If you agree to a ...

Browse by category
Ready to Begin? GET STARTED