Investigating Your Partner: a Great Benefit to Your Divorce Case? Or a Source of Unwanted Trouble?

The time has come. You and your partner have decided to seek a divorce. You may be thinking that, now that your partnership is ending, it is ok to start investigating your spouse. After all, you do not mean any harm. Maybe you think your spouse had an affair, and you want a private investigator to confirm. Maybe you believe your partner is residing with a new partner, or has a new job that he or she has not been honest about. All you want is to know the truth.

Take a step back. Tracking your partner, or hiring an investigator to do so, may be legal. However, it also may lead to jail time, if a Judge thinks you are criminally stalking, rather than legally gathering information.

So, what is criminal stalking of your partner? It is the engaging in activity, directed to your partner, that is likely to cause your partner to feel threatened in fear of being harmed. Stalking is not limited to following. For example, if one sends letters or text messages to his or her partner with threatening language, the letters or texts may be considered stalking.

This is not to say that any investigation of your partner that you perform, or hire an investigator to perform, constitutes stalking. Your investigation is not stalking if there is a “legitimate purpose,” or reason other than to “hound, frighten, intimidate or threaten” your partner.

For example, suppose that a wife hires a private investigator to follow her husband, because he seeks custody of their children in a divorce action, but she believe he abuses the children at a local park. If the wife hires a private investigator to observe her husband’s interaction with the children in the local park, this is unlikely to be considered stalking. The wife has a legitimate purpose to obtain this information, for use as evidence in the divorce proceedings.

On the other hand, suppose the same wife repeatedly follows her husband, or hires a private investigator to follow him, to tell him that he is unfaithful and that he will lose custody of their children in the divorce. That conduct is much more likely to constitute criminal stalking, as there is likely no legitimate purpose for this repeated following and statements.

So, how do you know if investigation of your spouse will constitute legitimate information gathering, or criminal stalking? That depends on the unique facts of their marriage, and the divorce lawsuit.

Observing your spouse, or hiring an investigator to do so, sometimes may be beneficial to your custody case, and produce valuable evidence to support your claims. However, before observing your spouse or hiring an investigator to do so, you should consult with a family law attorney. Contact Levene, Gouldin & Thompson for experienced advice.