Question: I suspect my wife of being unfaithful. My lawyer suggests that I hire a private detective to "get the goods" on her. The detective wants me to pay a non-refundable retainer and to pay each agent who works on the case an hourly rate plus expenses. Does the detective have to catch them in the act to get my proof? If not, what proof is necessary? How do I know I can trust the detectives? And how can I control my expenses?
Answer: It is not necessary to find two people in the act of intimacy to prove adultery. Proof can consist of showing the opportunity to be intimate - for example, two people enter a motel room or an apartment and remain there for several hours - and the inclination to be intimate - that is, evidence of the couple walking hand in hand or letters that have passed between them. Evidence can be direct or circumstantial, but it must be clear and convincing. Your lawyer can explain the applicable rules in your state.
Experienced matrimonial lawyers refer clients only to experienced, licensed investigators who know how to find out early whether there's smoke where you think there's fire. Good investigators substantiate their claims with photographs or video footage that corroborate what the detective says happened.
Before you hire a detective, find out how the agency recruits and trains agents. Ask about the agent turnover rate. Learn which agents will be working on your case and their backgrounds. Ask whether the agents who work your case will be in radio contact. In order to assure continuity in your investigation, only agents familiar with your case should be allowed to work on it.
How do you control your expenses? Don't sign an agreement until you are informed in advance of what is going to be done and when. Be available to discuss ongoing surveillance with your lawyer and to make decisions on a day-to-day basis. Non-refundable retainers for private investigators are inappropriate. Whatever you pay should be applied against the per-agent rates. And make sure that if more than one or two agents work the case there is a very good reason -- like the need to follow two cars out of town.
Lastly, be your own "risk manager." Make sure the investigator indemnifies you from potential claims by your spouse and third persons that while working for you, the detective trespassed, invaded someone's privacy, or used illegal means to try to get evidence. And find out if the detective has errors and omissions insurance coverage.
Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or by email to
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