Today’s post mentions indicators your divorcing spouse could have hidden marital property. It also asks: will the Court exclude evidence showing your spouse hid marital property, if your private investigator illegally obtained this evidence?

A) Indicators Your Spouse May Be Hiding Marital Property

As soon as your high-net-worth spouse filed for divorce in New York, your spouse claims his / her businesses had fallen on hard times. Therefore, your spouse took large loans from offshore lenders. Then, your spouse failed to repay these loans and was in default. Consequently, your spouse alleges in your divorce a net worth of “0”. Meanwhile, these events only first happened when your spouse filed for divorce. As American sports legend Yogi Berra said: “That’s too coincidental to be coincidental”.

Furthermore, when your spouse filed for divorce, your spouse left New York with your spouse’s paramour, (“the paramour”). These two were now living in a $3 million home in California the paramour had supposedly purchased. However, you suspect the paramour was your spouse’s intermediary and that your spouse had actually purchased the California home.  Stated differently, you believe your spouse used the paramour as the nominee purchaser of the California home.  Like your spouse’s “0” net worth claim, your spouse’s suspected use of a nominee purchaser is an indicator your spouse could be hiding marital property / community property.

B) The Investigation Of Your Spouse

Since there are indicators your spouse is hiding marital property, you hire a private investigator licensed in New York. Your investigator will track your spouse’s assets and seek evidence showing your spouse owned the $3 million home rather than the paramour. Three months after you hired the private investigator, your investigator says the following:

  • Your spouse has a secret bank account in New York maintained in the name of a shell company;
  • Your spouse sent a real estate lawyer in California, a $3 million check drawn from the secret bank account in New York;
  • The real estate lawyer used the $3 million from your spouse, to purchase the California home and title it in the name of the paramour.

The private investigator also supplies you with a copy of your spouse’s $3 million check payable to the real estate lawyer. Your investigator supposedly collected the copy from the bank in New York which is the custodian of your spouse’s secret bank account.

C) Is Illegally Obtained Evidence Admissible In Court?

You want to use this check in Court to show your spouse had hidden at least $3 million which was marital property. Additionally, you want to use the check to show your spouse ultimately used the $3 million to purchase the home in California.  Meanwhile, federal law requires banks to keep bank customer information like the check private. Unless there was a subpoena, court order or your spouse’s consent, the bank in New York could not legally release a copy of the $3 million check to your private investigator. If your private investigator illegally obtained the $3 million check, would the Court deem the check to be admissible evidence or would the Court exclude the check?

Courts in different jurisdictions have different views on this subject. In Sackler v. Sackler, 15 N.Y.2d 40 (N.Y. 1964) the Court in New York permitted a spouse who collected evidence illegally with private investigators, to use this evidence during a divorce.  However, in Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), affirmed, 272 So.2d 813 (Fla. 1973), the Court in Florida suppressed wiretap evidence in a divorce because a spouse illegally gathered this evidence.  Even if the Court does allow you to use illegally obtained evidence, there still might be severe consequences. If you and / or your private investigator committed crimes in order to collect evidence, the two of you could conceivably face criminal prosecution.  Depending on the circumstances, you could also be civilly liable for your actions.

Copyright 2022 Fred L. Abrams