It’s an old movie trope: the mysterious private eye chasing after a married man or woman trying to “catch them in the act,” usually the act of infidelity. Not many understand where this trope comes from or why private investigators are so often connected to divorce cases.
Prior to 1970, one needed to show fault in order to obtain a divorce – one spouse was found “at fault” and the other spouse found “innocent.” An “innocent” spouse needed to show “fault” on the part of the other spouse to be granted a divorce, and the “at fault” spouse had to obtain the consent of the “innocent” spouse for a divorce. “Fault” could be things like adultery, abuse, or abandonment.
California was the first state to become a “no-fault divorce” state in 1970, and Nevada soon followed suit. Even prior to officially becoming a “no-fault divorce” state, however, Nevada’s liberal divorce and residency laws made it easier to obtain a divorce in Nevada as opposed to other states. While Nevada law still articulated grounds for divorce, those grounds could be interpreted to encompass most situations (i.e., “mental cruelty”), so it was much simpler to obtain a divorce in Nevada, because a divorcing individual did not have the burden of proving adultery or abuse.
By 1909, Reno was considered America’s “divorce headquarters” and the divorce business became a lucrative one. Nevada’s residency requirement was shortened to three months in 1927, which was much shorter than many other states. In 1931, the requirement was shortened to six weeks (which is what it remains today). Nevada also did not have any restrictions on when one could re-marry after divorcing, when other states did. For example, California law prohibited remarriage within a year of divorce at one time.
“Divorce ranches” became popular in Nevada – places where people could stay long enough to fulfill the residency requirement for a divorce. Tule Springs, which has since been renamed Floyd Lamb State Park and sits at the northwest edge of Las Vegas, was a divorce ranch in the late 1940’s.
These divorce ranches were often luxury versions of the “dude ranches” that dotted the American west. Most ranches did not allow children and offered activities such as horseback riding. For many women, a stay at a divorce ranch was the first time they had ever lived alone, and the ranches became desirable work places for single young men. Even celebrities took part, including author Arthur Miller, who, after obtaining his divorce papers after a stay at Pyramid Lake, went on to marry Marilyn Monroe.
In the late 1960’s and early 1970’s states began enacting no fault divorce laws. As mentioned, California was the first to do so. Lawmakers reasoned that having no fault divorce would end the motive for individuals to commit perjury and make false allegations to meet the grounds for divorce. The last state to pass a no-fault divorce law in 2010.
So if one no longer needs to prove fault for a Nevada divorce, why hire a private investigator? Private investigators are typically retained in Nevada divorce cases for two purposes: (1) to find evidence of marital waste, and (2) to find hidden assets.
Under NRS 125.150, the court must make an equal disposition of community property, unless it finds compelling reasons for making an unequal distribution. This is where the “no-fault divorce” aspect comes into play. Litigants are often eager to get into court and show the Judge evidence of a spouse’s infidelity. If that infidelity, however, does not have a financial component, it is usually irrelevant.
Marital waste can be a “compelling reason” for the court to make an unequal disposition of property – for example, reimbursing one spouse the amount the other spouse spent pursuing extramarital relationships. The landmark cases on community waste are Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996) and Putterman v. Putterman, 113 Nev. 606, 939 P.2d 1047 (1997). In Putterman, the Nevada Supreme Court stated that financial misconduct justifying an unequal division of community property could include wasting community assets, secreting assets during the divorce case, “negligent loss or destruction” of community assets, or unauthorized gifts of community money or property. Individuals therefore may hire a private investigator to gather evidence of marital waste – for example, trying to catch their spouse on expensive dates.
Most often, however, private investigators are needed to discover hidden assets. If a litigant suspects his or her spouse is hiding assets, it may be helpful to have a private investigator look into those suspicions and see if the investigator can find any hidden accounts, properties, or other assets that may be community.
The information uncovered by private investigators, absent a court order stating otherwise, is typically considered “work product.” Work product is material that is prepared by or for an attorney or prepared in anticipation of litigation. Work product is generally also privileged and not discoverable by the other side, although the privilege is not absolute if the opposing party can give a good enough reason for its production. The statute governing private investigators, NRS 648.200, states private investigators are to keep their information private, except if the client asks them to divulge it, but the court can compel a private investigator to disclose their records.
Private investigators can become expensive, as such investigations often involve time-consuming and sensitive work, so it is important to weigh the importance of information or assets the investigator may find with the cost. An experienced family law attorney can help a client determine whether a private investigator is needed and the cost is justified.