The Expert Podcast

As a licensed private investigative agency, many of the cases that we do have to do with some significant life or family event. One of these events is a divorce or a separation of a family, and in those cases it's very important to take certain actions immediately when a divorce is even being contemplated. Now first, we're not attorneys, we're not giving you legal advice. You want to make sure you get proper consultation from a qualified attorney, but as part of doing a case, sometimes the attorney will suggest some of these items and sometimes it'll be left to the client to consider these. And these are the five things that we have seen as investigators that have helped clients in a divorce or family dissolution environment.

The first one is an asset search. Part of a proper compensation to both parties in a divorce is the appropriate distribution of the assets - the family estate, the marital assets sometimes it's called - and different states have procedures for how those assets are distributed, but the most important thing is to identify the assets initially. Many times an asset search will discover hidden bank accounts, real estate that's been transferred to another name. There is a legal term called a fraudulent conveyance, meaning that when a person has an asset within any type of partnership, a business, a family, a marriage, and they transfer that asset without the proper notification to the other parties, then it can be detrimental to the party that loses the access or ownership of that asset.

So doing a good asset search very early on in the divorce proceedings is important because later on their assets might be hidden. They still can be discovered, but it's harder to find them. And if you can show that an asset was hidden or transferred, in many cases that fact of discovery helps you more than just getting the asset back into the case. It may allow you to get more recovery from the other party than just the asset. There may be sanctions, there may be legal fees. If nothing else, it proves to the court and to you that the person is acting in bad faith in the marriage dissolution process. And if you see they're acting in bad faith but they're representing that they're trying to work with you to alleviate the process, then you'll know exactly what the true nature of their intentions are.

So getting an asset search done early or even before the divorce is important. And then another one during the divorce - remember that in the divorce proceeding there will be some type of asset disclosure or financial disclosure required by the parties in the case, and that disclosure is usually on a state required form that all parties have to fill out and submit to the court. I can tell you from experience that more than half of the financial disclosures that we've seen submitted by parties to a divorce are either intentionally or accidentally misleading. There's assets that are left off, there's income that's removed, there may even be misrepresentations of values of assets. So don't just take the word of what the other party puts on an asset disclosure.

And even though on that disclosure form it very specifically says "under penalty of perjury," many parties don't take that seriously. In fact, a lot of attorneys will tell their clients "don't worry about it, if you put down something fake nothing's ever gonna happen because nobody ever checks." In reality, that's mostly true - many parties to a divorce never do an asset search to find out what the other party is really up to. So that's the first step - is to do an asset search.

Number two is to do an activity search where you want to discover what that person is up to. Now you might think that this has to do with infidelity or other relationships, and partially that might be true, but in most states a divorce is granted by no fault, meaning that you don't have to prove adultery in a relationship to get a divorce. In fact, the adultery itself probably is not a factor in how assets are distributed or what the court's going to think. In most states, that's not going to be a factor at all.
Again, we're not attorneys - get good legal advice - but knowing about the activity of the other party, whether it's other relationships, adultery, or more importantly other life activities, is incredibly important. You want to know how that person has been living their life in the present, even in the recent history, and how they plan to live in the future, especially if you have children in this relationship. Knowing what they're involved with, knowing what their plans are - that they have intentions to move to a different jurisdiction, do they have a different job lined up, are they involved with different social groups or activities, are they involved with different life pursuits.

In many cases, a party to a divorce was not expecting the divorce - they thought everything was fine. So in the same way that the divorce itself is a surprise, you might also find that the activities the person is concealing is also a surprise. Now some of the value of that is simply peace of mind - knowing what the person's doing for your own well-being in your own self-comfort. But more importantly, there is usually one or more activities that the person is involved with that is going to affect how you settle that divorce, whether it's assets or visitation, whether it's custody or even something as simple as where you're going to live.

Because if you're depending upon that person for financial support or you're providing financial support, what the other person is going to be doing or intending to be doing might be important. If they're going to be hanging around with a crowd that is either at worst dangerous or at best just not your style, you may want to take that into account when it comes time to doing things like household settlement, family settlement. Of course, one of the most important things is child custody and visitation. If you find out that the other party is secretly looking at taking a job in another city, well they're either going to try to get custody of that person so they can move or of the family so they can move to another city, or they're going to not see the children because they're moving to another city. You want to know that in advance.

You want to go into all the negotiations, all the settlements with your eyes wide open - you don't have any surprises later. In fact, it may also help determine how you're going to handle certain assets. So are you going to sell the house, you're going to keep the house? Are you going to trade off immediate financial distribution like cash up front versus payments later? What if their new job is going to be maybe questionable how lucrative it's going to be? That type of activity is important to know about. Again, most of it probably is not going to be usable to prove anything in the divorce because in every state, if you ask for a divorce you'll get one - you don't have to have a reason why - but that activity search is going to be incredibly valuable.

Number three is to do what's called a QDRO. And if you or your soon-to-be former spouse has any type of retirement assets held in a 401k fund at your employer, that 401k by the definition in the federal tax statutes tax code does not allow assignment of a 401k fund to a third party. So proper settlement is tricky when there's a divorce. There is a mechanism of QDRO, and that is something that made part of the divorce. It stands for Qualified Domestic Relations Order, and that order is an exception to the 401k prevention of distribution of assets to a third party. It has to be qualified by the court and has to be signed by a judge.

Early on in your divorce process, make sure you're aware of what 401k funds exist. Make sure there's not any recent distributions or loans against it or conversions, and make sure that if there's more than one you know about it. If there was a prior employer, there may be additional 401k funds. Getting that QDRO established early will help you make sure that you're balancing all the assets and you're not taking a short settlement in one area when you don't know about assets that exist in another area.

Number four is doing valid notice. And when we say valid notice, what you want to do is make sure that any party that it's relevant to be aware of this event happening has that knowledge. Now it doesn't have to be sending certified letters or sending a court order or a subpoena, but just making sure that anybody who is involved with you or your family or your soon-to-be former spouse is aware that there is a potential divorce happening, because those parties can either intentionally or accidentally do something that hurts the overall divorce process.

It could be a well-meaning, well-intentioned friend that maybe puts an asset in their name. It may be an employer who unknowingly changes the pay plan of that person to try to help them hide income. It may be a relative who does something with activities with the children that might not be good for the divorce. It can be very informal, it can be done in a very casual, diplomatic way, but just make sure that everybody who has any involvement with one or both of the parties has some awareness that this is happening so that way they won't take any actions that accidentally can make the process harder for you or intentionally do something that gets in the way of a proper, convenient settlement of the divorce.

And it happens all the time - there's accountants, there's employers, there's friends, there's relatives that sometimes will do something that they think is going to help the divorce but it won't, or they may not know about it and they may be taking action that one party suggests or coerces them to do that might not be good overall. And if they had known that there was a divorce happening, they wouldn't have done it. In fact, you may be able to get some knowledge or information from third parties once they know there's a divorce, and they might say "oh by the way, did you know that they have interest in this business or they have a website that sells certain things that maybe you didn't know about?" So that's another area of that valid notice.

Number five is what's called OSINT - it's open source intelligence. And this is somewhat related to asset search and activity search, but what you want to do is document and understand and analyze the current status of the other party. And it's everything from social media to recorded documents, records, if there are any filings for that person. And the reason for having this is because seeing a snapshot of their current activity in real time will define and give the court a solid ground to make decisions on.

And if you can demonstrate to yourself and to the court that the person is established as maybe on the board of directors or has a criminal record or has a lawsuit against them - whatever those pieces of information are - it's part of the picture of where that person is in that place in time. And OSINT, open source intelligence, is a way to do that, and that can be done using a lot of tools of automation. You may - you know, you can do some of this yourself - but if you do, you want to make sure you're doing it using best practices. You don't just want to go online and be surfing and gathering information because you may gather too much from one area, not enough from somewhere else.

Also, inadvertently, you can maybe leave records of your searches that might not be good - might be considered harassment. So you have to be careful about that. Again, you can't say too many times - get good legal advice.

And as a bonus, those are five things to do - number six or bonus is to involve some sort of mediation. And if you're in a court process, you may be required to use a mediator at some point before it goes into full litigation. Even if you're not, if you can get a mediator involved - a third party that can communicate with you and the soon-to-be former spouse - you may find that it takes away some of the contentiousness, the drama, the conflict and the emotions from even simple communications.

If early on in the process you engage with a mediator who can handle some of the communications between the two parties - obviously you're still going to talk to your partner about certain things: paying the bills, picking up the kids, you know, getting checks, whatever the everyday things are - but if you have a mediator that you leave certain things to about negotiation or exchange of information, especially on sensitive issues, eventually you're gonna have to talk about them directly, but that mediator can help bring both of you closer together without the emotion or the raw nerves of direct confrontation or direct even conversation.

Because obviously if you're going through a divorce, it's a very difficult time. This is a partner who you trusted, you are vulnerable to for a long period of time, and now all of a sudden there's a betrayal at least from one side, maybe both. So it may be difficult to discuss sensitive subjects without it becoming defensive or angry, and a mediator can help navigate and be part of a shared solution. Their role as a facilitator can help these conversations get closer together.

Look, the mediator is not going to take sides, they're not going to decide the answers. They will just help you converse about these subjects so you can come up with your own answer. The role of the mediator is not to be a judge or a jury to say "you should do this" or "you have to do that." They help you foster a conversation where that answer will materialize by itself.

Look, if you want to have it done for you, you can just go to court and the judge will decide. But that's going to require a lot of very contentious and confrontational activities. Some of that you can't undo. If you go to court and you have to fight and prove and give evidence and be very harsh in your negotiation or your divorce process, that relationship will have the scar of that fight built into it forever. And if there's kids involved or money involved or some future involved, that's going to be a problem.

A mediator can take a lot of these sensitive issues and melt them - melt them down into a more collaborative process. At least they can get the parties closer together without the baggage of the emotions. And that's something we've seen in every case where it's been used has at least made the process better. It doesn't solve every problem - there's still going to be disputes about money and visitation and future and past betrayals - but the mediator will at least get the major things that are important closer together. And maybe the court has to kind of get it across the finish line, or maybe have to hash it out, you know, one time with a tough conversation, but at least you're starting from a place closer together.

And also a good mediator can give you some insight into what the reality is of what the court is going to do because they've seen it before. Again, they won't take sides, they won't pick a winner or loser, or they won't tell you what you have to do, but at least they'll navigate the process for you to have a better solution if you just duked it out on your own.

So there's five plus one things you might want to look at when you're engaging into a divorce or family breakup scenario, and you can refer to this using the recording or access it through our website at activeintel.com.