Family Law Investigations

Family Law Investigations

Bearden Investigative Agency discusses divorce, custody and family law cases

Disclaimer: The questions and answers deal with general investigative questions and how they may apply to mock situations. Although these answers discuss common issues, they may or may not be applicable to your case’s particular set of facts. The answers should not be taken as, nor are they offered as legal advice. Careful consultation with an attorney and/or an investigator is highly recommended prior to acting on any of the below. The questions and answers are protected by copyright and reproduction is strictly prohibited without permission from Bearden Investigative Agency, Inc.

Q:Why should I investigate my spouse if Texas is a no-fault state?

Texas is not a true no-fault state. A person may file for a fault divorce in Texas for cruelty, adultery, conviction of a felony, abandonment, living apart, or confinement in a mental hospital for a specified period. The primary reason for filing a fault divorce is to gain an advantage in pretrial settlement issues, to support an unequal division of property or to influence custody, visitation and support issues.

As such, thoroughly documenting a spouse’s income, verbal and/or physical abuse, adultery, alcoholism and other issues may have a dramatic effect on the outcome of the case. Family Law courts are courts of both equity and law. Under the Family Code, property settlements are to be adjudicated in a “just and right” manner. This ultimately means that a judge may divide property, award custody and alter the rights of the parties according to concepts of fairness in a flexible framework of law.

It is important to note that at least 97 percent of Family Law cases are settled out of court – in part to avoid public disclosure of private matters. Final settlements can be based on a wide range of factors, including the properly documented behavior of a spouse. The key to effectively settling a case is to thoroughly document behavior that a court can legitimately consider in the dissolution of the marriage, the partition of properties and in assessing the environment of children for custody purposes.

Knowledge is power and it is vitally important to gain and document this knowledge before a party to a Family Law suit becomes aware of the existence of any investigation. We have the experience and expertise to assist you in this endeavor.

Q:How can I tell if my spouse is having an affair?

There have been countless studies that come to varying conclusions on this subject. At Bearden Investigative Agency, we rely on our own expertise and experience gained through more than 20,000 Family Law cases to determine and document the facts in each case.

We know that every person and every relationship is different. Men and women routinely exhibit different signs. If you are trying to make a determination on your own, there are several factors to consider, including sudden changes in your spouse’s behavior, secretive behavior, unexplained changes in his/her schedule and unexplained expenses. A personal computer, laptop or mobile device may contain important information, but it is important to remember that lawful access may not be available.

It is better to document any suspicious behavior rather than confronting the spouse with the evidence. Carefully document the behavior and any evidence in a way to preserve it for future reference in case you decide to hire an investigator.

Q:Do I automatically receive 50 percent of our combined property in a divorce?

Not usually. Almost by definition, nobody ever gets exactly 50 percent. Corporations, trusts and partnerships have widely differing values and many times they cannot be equally divided. The same goes for such items as refrigerators and couches. The Texas Family Code guarantees a “just and right division of property.” The term “just” means it will be equitable or fair. The term “right” means it will conform to law. There are many different types of property the court must consider.

Although state case law provides detailed guidance, there still remains that fairness quotient. Realistically, largely by virtue of the difficulty of dividing personal property, one party will often walk away with about 55 percent and the other party will walk away with 45 percent. Who gets the bigger portion will often be a result of the court’s belief that one party has been treated unfairly in the marriage. Since Texas, and most community-property states, does not have true alimony, a court may try to compensate for this. The general classifications of property the court will consider include:

Separate Property: This is property brought into the marriage by one party or acquired by inheritance or as a gift. However, this is not as simple as it sounds. Often, particularly in long marriages, separate property becomes commingled and used for the benefit of both parties, thus changing its character to community property. Also, many transactions between spouses may be characterized as gifts and even inheritance can be clouded when a bequest in a will lists a husband and wife. Generally, the income from separate property is considered community property. 

Separately Managed Community Property: This is property that is technically community property but is solely within the care, custody and control of one spouse. An example would be a car driven predominately by one spouse, a separate bank account, an IRA fund, a business, etc. It will be calculated in the overall division of property, but some special rules apply and typically use of separately managed personal property will stay in the controlling spouse’s control.

Jointly Managed Community Property: This is traditional community property and includes the basic issues of savings accounts, checking accounts, homestead, furniture and other jointly used items. The division of this type of property is often done by a complex and lengthy number of rules. In reality, most divorcing spouses reach some sort of agreement. However, when there are disputed cases, the court will consider the overall evidence and try to divide the property fairly and in accordance with the law considering all of the factors, including fault, in the divorce.

Q:I believe my spouse has been hiding money, or at least spending a lot of money, before filing for divorce. Do I have to prove this?

Yes. There can be two strategies to proving this behavior. Bearden Investigative Agency can conduct an investigation to locate hidden funds or, if you can document the original existence of the money, a court may simply assume that the funds were taken for use by your spouse and they will credit that amount as though it had been given to the spouse.

However, it is important to remember that either spouse in a marriage has the right to spend community property funds. It is only when a spouse is overtly trying to hide funds from the court to avoid their division that the court will take action. You may not have agreed with your spouse’s expenditures, but unless it is egregious or there is a current tangible benefit accrued from the spent funds, such as a car, boat, etc., a court is not likely to consider routine expenditures in division of the property.

Q:Can I recover money that my spouse spent on an affair while we were married?

Very possibly. The funds will need to be properly documented and may be considered in the distribution of funds. For example, half of every dollar a spouse spent on a girlfriend/boyfriend may have theoretically belonged to the other spouse. Almost in all states, a reimbursement claim may be allowed to return these funds back to the appropriate estate.

In these cases, appropriately documented evidence may be important to the legal division of property by a court. We have seen the greatest property divisions in cases where a spouse introduced a girlfriend/boyfriend to family or friends before the other spouse knew about the affair. These types of incidents are important to document because they could have an impact on the outcome of the divorce proceeding.

Q:Should I surveil my spouse? Should my friends?

You and your friends may try, but this is rarely successful and it is not recommended. First, your spouse is intimately familiar with your body profile and your distinct movements, making it extremely difficult to mask them with hats or borrowed cars. There are real risks to getting caught, including the loss of credibility in a legal proceeding since you and your friends have a vested interest in the outcome of the case.

Under current state law, you may also run the risk of a harassment charge or you make it easier for your spouse to obtain a restraining or protective order against you. Furthermore, state laws regulating and licensing investigators prohibit such activity by non-licensed actors.

Finally, it is nearly impossible for a person not to confront the wrong-doer caught in the act. Such a confrontation risks bodily harm and it results in the loss of the element of surprise you may want to use to your advantage later. Spur-of-the-moment confrontations are bad ideas for many reasons. Courts generally accept surveillance, but they are not usually comfortable with self-help procedures. It is always best to hire a licensed and insured investigator.

Q:My spouse and I were never formally married. Are we married under the law?

Possibly. It depends on which state you reside in. Some states, such as Louisiana, do not recognize common law marriage. However, Texas recognizes common-law marriage and now refers to it as an “informal marriage.” Some studies show that as many as 25 percent of the “marriages” in Texas are “informal marriages.”

To be involved in an informal marriage, the man and woman must agree to be married, they must live together in this state as husband and wife, and while within this state, they represent themselves to others as married. However, a person under 18 years of age may not enter into an informal marriage.

Unless a divorce is commenced within two years after the parties separate and cease living together, the law will presume that the parties did not enter into an agreement to be married.

To recap, there is a three-pronged requirement to prove an informal marriage:

  1. An agreement to be married.
  2. Cohabitation in this state.
  3. Holding out to others that the parties are married.

If you did not go through a formal ceremony, you may execute a Declaration and Registration of Informal Marriage, which is filed with the County Clerk’s Office in your county of residence.

Quite often, we’re asked to conduct investigations in an attempt to prove or disprove the existence of common-law marriages. In these investigations, we attempt to identify circumstantial evidence that suggest there had been some past agreement, cohabitation existed and there were affirmative acts made by either party that suggested that such a marriage existed.

Q:How do I prepare for a divorce or a custody fight?

Document! Document! Document!

Once you determine that you may be involved in Family Law litigation, carefully document every potential item of interest. However, you should consult your attorney before undertaking any of the following activities.

In Texas and Louisiana, it is legal to record a conversation as long as you have the permission of one of the parties to the conversation, including yourself. Other states have different recording statutes and may require the consent of all of the parties involved.

Documenting vindictive or retaliatory statements, child exchanges or promises of hidden assets can be useful.

Get a wall calendar, a blue pen and a red pen. When something good occurs, such as a child visitation or an on-time payment, mark it in blue. Develop shorthand that is understandable for third parties and include the time on the appropriate date. Conversely, when a spouse is late, lies, misses a visitation, fails to fulfill a promise, makes a threatening phone call, etc., mark it in red and document it with the same coding that is reasonably understandable to a third party.

The rules of evidence may allow admission of contemporaneously created evidence to summarize testimony. The calendar can be blown up to wall size and used in a jury trial. Keeping a detailed calendar is more effective than simply testifying that your spouse “was always late in picking up our son.” Some attorneys may suggest keeping an electronic calendar, but we have found that a handwritten one will typically have more effect.

Document your finances thoroughly. We recommend you obtain copies of as many of the following items as possible:

  • Tax returns
  • Check registers
  • Credit card bills
  • Itemized cell phone bills
  • Financial statements
  • Bank loan balances
  • Income documents
  • Trust and estate documents
  • Pre/postnuptial agreements
  • Corporate agreements and formation documents
  • Any other documentation you feel is important

Obtain a list of your spouse’s credit cards, ATM cards, bank accounts, and stock ownership early on. Discretely make copies of these documents and return the originals to their place. Be careful to obtain only those items located within the marital residence or in other areas to which both of you maintain access.

Check your spouse’s digital devices such as cell phones, tablets or PDA for recent activity. If you are computer literate, check community property computers and print emails of interest.

Again, careful consultation with a lawyer and an investigator prior to filing for divorce to obtain these documents can make a tremendous difference in the outcome of your case. Many of these items are discoverable. However, the process of discovery can be extraordinarily expensive. Time spent documenting finances and other information prior to an official filing can save you money.

Discretely videotape child transfers. Such video documentation can be useful. However, it is vital to do so discreetly. If the children or spouse become aware of these activities, the spouse may exploit them as antics of desperation.

If you have failed to document a recent bad act, the next time you communicate with your spouse, try to get them on tape discussing the prior bad act. Use one tape per conversation, then label and file the tapes. Advise your attorney of the video and audio tapes you have. Listen to their instructions thereafter explicitly.

Change your will and insurance policies to remove your spouse. The Texas Probate Code removes a spouse from the chain of inheritance once a divorce is final unless reaffirmed after the divorce. However, you may be in litigation for a long period before a Final Decree of Divorce is entered. Additionally, Bearden Investigative Agency has been involved in numerous cases where the death of a spouse has been plotted for insurance or inheritance proceeds during the divorce process. Take away that temptation by making level headed changes to your policies.

Contact the attorney of your choice EARLY. Those who get solid legal advice early on tend to fare better throughout the litigation process.

Q:I have remarried. May I have the parental rights of my former spouse terminated so my new spouse can legally adopt my child?

The court may order an involuntary termination of the parent-child relationship under §161.001 of the Texas Family Code if the court finds by clear and convincing evidence (a comparatively high degree of proof) that the other parent has:

  • Voluntarily left the child alone and expressed an intent not to return.
  • Voluntarily left the child alone without expressing an intent to return and without providing for the adequate support of the child and remained away for three months.
  • Voluntarily left the child alone without providing adequate support of the child and remained away for a period of six months.
  • Knowingly placed or allowed the child to remain in conditions or surroundings which endangers the physical or emotional well-being of the child.
  • Engaged in conduct or placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child.
  • Failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition.
  • Abandoned the child without identifying the child and the child’s identify cannot be ascertained by reasonable diligence.
  • Voluntarily abandoned the mother of the child beginning at a time during her pregnancy with the child, and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth and remained apart from the child or failed to Support the child since the birth. Refused to submit to reasonable and lawful order of the court regarding Child Welfare Services.
  • Been the major cause of the failure of the child to be enrolled in school, the child’s absence from the child’s home without the consent of the parents or guardian for a substantial length of time or without the intent to return.
  • Executed an affidavit of relinquishment of parental rights.
  • Been convicted or placed on probation including deferred adjudication for being criminally responsible for the death or serious injury of a child under specified sections of the Penal Code.
  • Had his or her parental rights terminated with respect to another child because they voluntarily left the child alone or in possession of another for a specified period of time.
  • Constructively abandoned the child to Child Protective Services.
  • Failed to comply with a court order establishing requirements for regaining of parental rights.
  • Used a controlled substance in a manner that endangered the health or safety of the child and failed to complete a court-ordered substance abuse treatment program or continued to abuse a controlled substance.
  • Knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense and confinement or imprisonment for a period of two years from the date of filing the petition.
  • Been the cause of the child being born addicted to alcohol or a controlled substance.
  • Voluntarily delivered the child to an emergency medical services provider without expressing an intent to return for the child. And that termination is in the best interest of the child.

If you have clear and convincing evidence of any of the above as more accurately described in §161.001 of the Texas Family Code, and if the court finds that the termination is in the best interest of the child, a termination of parental rights may be granted involuntarily.

However, one should be very cautious in undertaking such a case as the amount of evidence needed under any prong is still at least perceived as being higher than normal even in light of the clear and convincing evidence standard. Primarily this is because of the court’s ability to fashion other alternatives to custodial situations than termination, such as supervised visitation.

Q:I think my grandchild/neighbor/child's friend is being abused. Do I have an obligation to report it even though I am not sure it is occurring?

Yes! §261.101 of the Texas Family Code was enacted in 1999 and requires “a person having cause to believe that a child’s physical or mental health or welfare has been adversely effected by abuse or neglect by any persons shall immediately make a report as provided …” by law. Even attorneys have to report their clients if they have “cause to believe” they have committed abuse or neglect – §261.001 of the Texas Family Code defines both abuse and neglect, and both are far more broad than the stereotypical physical injury to a child.

The definitions include both acts and omissions that result in physical, mental or emotional injury to a child in any way. Neglect includes many things but also means leaving the child with adults in a situation where the child would be exposed to a substantial risk of physical or mental harm. The proper response is to call a local police department and report the case.

Another statute makes the reporting person a confidential informant to a law enforcement agency and the information on the reporting person is not available through the Public Information Act.

If you feel strongly enough to inquire, you should report it. Also, report it repetitively if police or Child Protective Services do not act adequately. They are overworked agencies who sometimes mistake their priorities.

You should never file a false child abuse report against a spouse with whom you are in a dispute. The court can consider that as one of the reasons for assigning conservatorship.

Q:My former girlfriend is pregnant with my child. What do I need to do to protect my rights as a father?

We get this question frequently. The first thing you should do is contact a competent attorney. Secondly, the father should register with the voluntary paternity registry maintained by the Texas Department of Health.

This preserves certain parental rights and extends the period for an alleged biological father to act. There is a very short window of opportunity to act following the birth of the child and you should consult an attorney and be prepared to move quickly.

Q:How can an investigation assist in a custody or visitation lawsuit?

A judge or jury has wide latitude in deciding conservatorship of minors. The overriding command is to act “in the best interest of the child.” In considering what ultimately is in the best interest of the child, the court may consider basic environmental issues such as the lifestyle of the parent, the probable future lifestyle of the parent and child, and threats to the safety, welfare, and physical and emotional well-being of the child.

While an affair during a marriage or even dating during the separation period would not at first blush appear to be an issue that would effect “the best interest of the child,” repetitive activities can be used to show the probable lifestyle of a parent once the divorce is granted, the interests and focus of the parent, and the status of the child in the newly single or separated parent’s scheme of things.

While the court will be most interested in romantic partners and activities in proximity to the child, the court may also choose to look at an aberrant lifestyle on weekends when the child is not around during the separation period if such a lifestyle is clearly a precursor of future behavior once the divorce, conservatorship and custody arrangements are finalized.

Other issues that may be considered by the court in determining the proper party to be awarded conservatorship include:

  • Drinking
  • Partying
  • Live-in or visiting romantic partners
  • Drug usage
  • Supervision
  • Abandonment
  • Acting as a proxy for a grandparent

Q:My separated spouse has a girlfriend/boyfriend who spends the night with him/her when I have the children. Should I document this?

It doesn’t hurt to. Judges will vary in their approach to this issue. Some judges may look askew at pre-divorce live-in arrangements, even when children are not present. Some judges may recognize that divorces can take a long time to finalize, and so they may view a relationship, as long as it is not aberrant or involving the children, as acceptable. However, providing evidence of this pre-divorce behavior can be important.

Q:I have made mistakes as well, but my children are my life. What do I have to do to win a Family Law case?

The first and most important thing you must do is to develop a winning attitude. A winning attitude is developed when you understand the big picture and come to grips with the fact that a divorce is a type of lawsuit. Yes, it is a lawsuit with much more emotion, frustration and fear than most lawsuits, but it still has to be handled as a lawsuit. No type of lawsuit requires positive input of the client more than a Family Law case. Be proactive and most importantly BE SMART!

Don’t file a lawsuit unless you intend to get divorced. Once a Family Law case is filed, it will have to be resolved in the courts. Most Family Law issues will be decided by a judge. You will have many hearings and a final decision by the court on the following ultimate issues:

  • Dissolution of the marriage.
  • Conservatorship of the children.
  • Marital property distribution.
  • Spousal maintenance – temporary/permanent.
  • Child support.

In a contested case, you will have a number of hearings. You may lose some and win others. Remember, it is the final outcome that counts. Also, for your own well-being, remember your spouse is inextricably in your life and the life of your children. Emotions run high and pains are obvious, but these issues should be resolved as amicably as possible. However, don’t be naive.

It’s unlikely that you’ll go through a case involving one of these ultimate issues and keep your spouse as a good friend, at least not in the short run. So try to be friendly, always think of others, bend frequently – but never break.

Realize that your case is not going to be the worst or best case that the judge has overseen. Constantly posture yourself as a good person, but one who is willing to defend your rights. Understand that a judge may only have a few hours face-time with the parties involved to use within the framework of the law to decide some of the most major issues in your life.

Remember that things that upset you terribly may seem minor to the court because of the other cases the judge has seen. Be truthful with your attorney, don’t lie or exaggerate, or get too attached to your moral viewpoint. Don’t expect magic or a miracle in the courtroom. Also, don’t forget that you need to PROVE that the opposing party has lied. That is where we come in to document the behavior and truthfulness of another party.

Q:My spouse doesn't really want custody of the children, but my spouse's parents are pushing him/her to press for more visitation. What can I do?

Until recently, grandparents in Texas had very limited rights. They rarely, if ever, had standing to contest conservatorship on their own. This caused many grandparents to force their children who were ambivalent to fight for custody.

However, recent changes to the Family Code have given grandparents standing to sue for visitation in very specific circumstances, and to occasionally intervene and try to seek custody on their own. The state’s policy is generally to discourage grandparents from trying to take children from a nuclear family but grandparents may be given more rights in coming years.

We have documented a visiting parent who picks up a child for a weekend visitation, drives to the grandparents’ home, drops the child off and goes out socializing, spending virtually no real time with the child. Documenting this “child abandonment” over an extended period can demonstrate to the court the visiting parent’s lack of real desire and his/her role as a proxy for a grandparent. Our experience is that when thoroughly documented, the courts will often deal harshly with this type of parent.

Q:I think I will be going through a divorce. I know my spouse doesn't really want custody of our children. Do I have anything to worry about?

Possibly. Child custody in Texas is a highly fact-intensive issue and one that all too often is used as a pawn in the overall settlement process. It is not unusual for one spouse who may view the community property estate as their own separate property to threaten a custody case against the other party simply to scare the spouse into submitting to an unfair distribution of the community property.

This is common in households where the primary wage-earner is a professional, self-employed, or has a high-profile position within the community.