Private investigators seem to be a natural part of the distrustful atmosphere of a divorce. In Illinois, private investigators can be called as witnesses in a divorce trial to describe and explain their findings in regard to the other spouse.
“You’re a cop aren’t you?
No, a private detective.
Isn’t that the same thing?
The cops guarantee order. All I do is uncover disorder.” – Manuel Vazquez Montalban
Why Do People Hire Private Investigators In An Illinois Divorce?
People have been hiring private investigators forever. The reason for hiring a private detective is almost always for the purposes of proving adultery or some kind of relationship. Even back in 1873 an Illinois court took the testimony of a private detective who related that he had the parties under surveillance took walks and carriage rides and on one occasion the investigator saw the man place his hand on the woman’s lap (gasp). Blake v. Blake, 70 Ill. 618 (1873)
Adultery is now largely irrelevant because adultery is no longer a grounds for divorce.
Furthermore, adultery almost never impacts anything in an Illinois divorce.
The courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)(emphasis mine)
For support, “the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)
Likewise, Illinois child support is a pure calculation with zero consideration of either parent’s behavior. Child support is “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)
Parenting time is also immune from the dispersions that adultery may cast. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)(emphasis mine)
Catching people “red handed” using a private investigator is pointless. In my experience, people are happy to expose their affairs in order to finalize the termination of their prior relationship.
Alternatives To Private Detectives In An Illinois Divorce
Private detectives simply aren’t necessary to uncover facts because the divorce discovery process uncovers facts using the power of the Illinois Supreme Court Rules.
“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a)
There are very few questions that cannot be answered by a divorcing spouse themselves under the discovery rules. A spouse must turn over documents they have control or access to.
“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information…or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action.” Ill. Sup. Ct. R. 214(a)
That’s pretty much everything. If a spouse doesn’t have the document, the spouse probably has access to the document and, therefore, must turn the document over to the requesting spouse.
“A party may be required to produce documents which are in the possession of third parties, where [the party] has custody or control of those documents.” Central Nat’l Bank v. Baime, 112 Ill. App. 3d 664, 669 (Ill. App. Ct. 1982)
If a relevant document still can’t be found, whomever might have that document can be forced to turn the document over via subpoena.
“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)
If you are not looking for a document as part of your divorce investigation, you are looking for testimony about something. Again, the Illinois Supreme Court Rules provide that ANYONE can be made to provide testimony in an ongoing divorce case.
“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202
Even uncovering secret wastefulness and hidden expenses do not require a private investigator in an Illinois divorce. Under the dissipation clause of the Illinois Marriage and Dissolution of Marriage Act, one can simply say, “This money is missing,” and it is the duty of the other spouse to explain where it sent.
“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992
“The general principle is that a person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent.”In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987
The investigation about missing money or assets becomes the other party’s problem. The alleged dissipator had better investigate good and provide good proof that the money was not spent on a non-marital purpose. Anything less, will be rejected by an Illinois divorce court.
“General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987
When A Private Investigator Is Actually Necessary In An Illinois Divorce
A private investigator is only needed in an Illinois divorce when there is an issue where no document could exist and people are willing to lie. This situation only really occurs in divorce cases alleging cohabitation for the purposes of avoiding or terminating maintenance.
“It is well settled that Illinois courts regularly review evidence from private investigators in cohabitation cases.” Goodman v. Goodman, 2023 IL App (2d) 220086
“Maintenance will be terminated based upon resident, continuing, conjugal cohabitation if the ex-spouse paying the maintenance can show that a de facto husband and wife relationship exists.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994
In Illinois, cohabitation is determined by a court after “[considering] various factors defining that relationship, such as (1) its length; (2) the amount of time petitioner and [paramour] spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together. The test the court should employ…is the totality of the circumstances.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994
A good private investigator won’t just explain what they saw but will allow the judge to make conclusions based on corroborative evidence.
To corroborate is “to add weight or credibility to a thing by additional and confirming facts or evidence.” Black’s Law Dictionary (10th ed. 2014).
The maintenance receiver is sure to understate the amount of time they spend with their boyfriend/girlfriend and the intimate nature of that time together. The only way to establish the time and intimate character of the maintenance receiver and their significant other is to hire a private investigator to establish they spend the night together (we all know what happens at night behind closed doors).
The private investigator “testified that, during the last week of October 2003, he observed Baker’s car parked overnight at petitioner’s house for five nights. [The private investigator] testified that during that week he observed that Baker’s car had been moved only once. Further, he testified that he did not see either Baker or petitioner in or about the house, as all of the blinds were drawn shut.” In re Marriage of Sunday, 820 NE 2d 636 – Ill: Appellate Court, 2nd Dist. 2004
It can get even more personal. “[D]efendant engaged private investigators to keep plaintiff under surveillance. The investigators learned that plaintiff had been seeing Patrick King on an almost daily basis, and that from May 15, 1967, until the time of trial, she had been in the King apartment on at least 52 occasions, staying there on each occasion from the late evening until 3:00 to as late as 5:00 the following morning. The evidence reveals that during the periods of time plaintiff was in the apartment, lights were switched on and off, and at times there was only what appeared to be a “night-light” illuminating the apartment. It also appears that on several occasions prior to going to the apartment, plaintiff and King spent time drinking in a cocktail lounge, during which times King was observed fondling and caressing plaintiff. The investigators also took photographs, which were admitted into evidence, showing plaintiff and King alone in the King apartment drinking cocktails.” Ganzer v. Ganzer, 249 NE 2d 660 – Ill: Appellate Court, 1st Dist., 2nd Div. 1969
A thorough private investigator will leave little doubt as to the conclusions which must be made.
“[A] licensed private investigator, testified on behalf of respondent. He performed 1500 to 2000 investigations in matrimonial matters over the last eleven years. He was employed by respondent on three occasions. In April of 1976 he was requested to ascertain the identity of the person respondent’s wife was living with and where, which required surveillance of petitioner’s apartment in Itasca for eight days from April 6 through April 17, 1976. Surveillance began at about 4 p.m. on each occasion. He observed petitioner pull up to the apartment complex in a white convertible with a male subject later identified as Ken Wyant and saw both enter the apartment through the rear. At 10:30 p.m. all lights in the apartment were turned off. He knew that the two subjects were still in the apartment by virtue of having applied surgical tapes to the door. At 4 a.m., the tapes were still intact. This was done at approximately the same times with the same results on each occasion.” In re Marriage of Sieck, 396 NE 2d 1215 – Ill: Appellate Court, 1st Dist. 1979
There is a thin line between what a private investigator presents and the conclusions that a judge arrives at. The judicial findings have to be based on the private investigator’s testimony and exhibits.
“A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.” The People v. Wallenberg, 181 NE 2d 143 – Ill: Supreme Court 1962
When Private Investigators Go To Far In An Illinois Divorce Case
In my experience, private investigators are as weird as the fictional ones on TV. For every suave Magnum P.I., there are a dozen bumbling Inspector Clouseaus.
Rich Woman: Someone has broken into my safe!
Detective: (Examines safe) Lucky for you this safe is empty.
Do not let a bad private investigator ruin your divorce case. Your investigator is your agent and their investigation is subject to sanction if improper.
“Rule 219(d) specifically provides that sanctions may be imposed where a party wilfully attempts to obtain information by an improper discovery method.” Martzaklis v. 5559 Belmont Corp., 510 NE 2d 1148 – Ill: Appellate Court, 1st Dist. 1987
“The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.” Ill. Sup. Ct. R. 219(d)
The ”use of an investigator to “interview” witnesses does not fall clearly under Supreme Court Rule 201 (87 Ill.2d R. 201), which governs general discovery provisions, [but] we find that the activities engaged in were sufficiently akin to discovery to be sanctionable under Rules 219(c) and (d).” Martzaklis v. 5559 Belmont Corp., 510 NE 2d 1148 – Ill: Appellate Court, 1st Dist. 1987
Constant intrusive surveillance could border on being an intentional infliction of emotional distress but if the surveillance is part of an ongoing court case “the absolute litigation privilege bars a claim for intentional infliction of emotional distress.” Goodman v. Goodman, 2023 IL App (2d) 220086
If you are truly considering hiring a private investigator for your Illinois divorce case, you probably just need a better divorce lawyer. Contact my Chicago, Illinois family law firm to discuss your divorce with an experienced Illinois divorce attorney.