Is a Private Investigator Someone You Need For Divorce?

FULL TRANSCRIPT – Season 2, Episode 61

Welcome to another episode of the exEXPERTS’ Divorce etc… podcast, where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it. We’re Jessica and T.H. And keep in mind you can get exEXPERTS in your inbox by signing up for our newsletter. Get the latest news and find out all about our events before anyone else, plus, access to special discounts and prices. Head to to subscribe.

Jessica: Welcome everyone to today’s episode of Divorce etc… I’m really excited to have with me today, Jan Barefoot, a private investigator. Her company is Barefoot Investigations. Unfortunately, T.H. can’t join us today. She’s under the weather. But this is going to be a really fascinating conversation and something that a lot of people may not think about when they’re getting divorced. But the truth is, maybe you should be. We’re going to hear all about when and why. Thank you so much for joining me today, Jan.  

Jan: Thanks so much for having me.

Jessica: Let’s get started on I think probably the first question that a lot of people would have when it comes to divorce and the potential need for a private investigator. What would be some of the common reasons or feelings that someone might be having that would prompt them to wonder if they actually need a private investigator?

Jan: Well, the absolute most common reason that somebody would need an investigator is if they suspect their spouse is having an affair. So when the typical signs are they’re starting to come home late, they’re not where they’re supposed to be, they’re more private with their phone, they may have changed their phone passcode, just working longer hours, playing golf more often, going out with their friends more often. Those are the red flags that you don’t want to confront your spouse about because they’re just going to lie. The most important thing to do is just call a PI first, and then get answers to your questions, and then figure out which path you want to take.

Jessica: It’s so funny because when you have kids, I have two teenagers, I remember back in the day people talking about if you were going to have a nanny, whether or not you should have a nanny cam, right? People were like if you ever feel you maybe should have a nanny cam, that’s your answer. You probably should just fire the nanny at that point. You don’t even need to take the step of having the camera. Thankfully, I never felt that need. But do you feel it’s the same with a private investigator? If you’re having a pit in your stomach, and you’re questioning something, that generally means, yes, there’s something going on.

Jan: Absolutely. I mean, just your gut feeling. Just trust your gut. I mean, if you feel like something’s going on, then really, 95% of the people who call us and say, I suspect my spouse is having an affair, maybe even 98%, we catch them doing something. By the time they come to us, they just have that gut. There are just enough signs there. It’s very rare that we follow someone and don’t find that they’re having an affair.  

Jessica: Wow. Now, the affair, like you said, is the pretty obvious one. Although, talk to us a little bit about–I live in New York, and New York is a no-fault state. There are a lot of states in the country where it’s a no-fault state. The truth is, and my ex did have an affair, but it wouldn’t have mattered really in the end game anyway. Tell us when it would matter.

Jessica: Yeah, so every state is different. I mean, it really depends on your state’s laws. It has a bearing in North Carolina because it has a bearing on post-separation support, alimony, whatever you want to call it. But it also can just give you leverage. In North Carolina, we still have alienation of affection lawsuits. You have the option of suing that person for damages if they’ve alienated your spouse’s affection. That’s another reason why you might want to get evidence of adultery.

Jessica: You’re talking literally about if my husband is having an affair, me suing the other woman?

Jan: Yes.

Jessica: Does that happen frequently?

Jan: It does. It does. Yeah, and I don’t want to say frequently, because it is a very long drawn out expensive emotional lawsuit, and you don’t want to sue that person if there’s nothing to collect. If that person doesn’t have any real assets, they don’t make a lot of money. Then that’s just an emotional drain for you for the next three years. But it does just kind of give you leverage because what I found is your spouse, they’ve found this new love interest, they’re all about that new person, and they’re going to protect that person. They’re not going to want that person to be subpoenaed for a deposition. They’re not going to want that person’s financial records to be subpoenaed, their phone records to be subpoenaed. They’re just going to do everything they can to protect that person. It really does give you leverage just in negotiating a settlement that’s favorable to you.

Jessica: Okay, so what are some other reasons other than an affair? I mean, again, that’s the obvious one. But I mean are there other reasons why someone might want and need a private investigator during the divorce process?

Jan: Yeah, especially in relation to child custody. If you’ve got a spouse that maybe, unfortunately, they’ve got a drug or alcohol problem, we could do surveillance on that person to determine how much they are drinking, when they’re drinking, how much they’re drinking, are they driving when they’re drinking, are they driving with the kids when drinking?

Jessica: Okay.

Jan: Another thing that can be really important, if you’ve already got a custody agreement in place, whether it be official or unofficial, if every time you’re turning over the kids, they’re taking them to Grandma’s house and then going out with their girlfriend or friends or boyfriend, then that’s going to be important to show that okay, this is their time blocked off with the kids, and they’re not taking advantage of it. They’re not spending quality time with the kids. That kind of surveillance can help you to negotiate more time with your children. That’s a pretty popular reason that we do surveillance.

Jessica: And so you’re already well into the process at that point, if you’ve already started splitting your custody. Are you having people that are hiring you once the divorce is finalized, or are the majority of your clients currently negotiating through the process?

Jan: I would say 70 to 75% are very early on. They’re just having those early suspicions or they’re just working through the process. But then there’s a fair amount that are after the fact. They may be one to two years into their settlement, then we’ve got those custody issues that are coming up, or the kids are talking about hey, mom’s drinking a lot more, dad’s not ever around when we’re over at his house. Another thing in North Carolina, I don’t know about other states or New York, is cohabitation. If you were awarded spousal support from your spouse, because of whatever reason, there’s typically, if your spouse had a good attorney, there’s a clause in there that says okay, I’m going to pay you this support until you remarry or cohabitate.

Jessica: Yeah, I know a lot of people who have that.

Jan: They don’t remarry, as long as they’ve got that income coming in. But they will tend to all but cohabitate. We do a lot of surveillance around that to try to establish are these people living together? And if they’re not truly living together, how much time are they spending together? That just, again, helps to negotiate to get out of paying that long-term alimony or post-separation support money.

Jessica: Right, that’s fascinating. I would imagine, I hate to stereotype, but I feel probably more men are doing the hiring for that reason versus women because women generally probably aren’t the ones paying the spousal support?

Jan: Yeah, it definitely is a higher percentage. I mean, it’s not unheard of by any means that we work for the wife and she’s paying her husband support. But yeah, the majority are men for sure.

Jessica: Okay, so someone gets to a point for whatever reason, regardless of what state they live in, and they feel they have a need for a private investigator. What do we look for to make sure that whoever it is that we’re hiring is someone good?

Jan: Yeah, that’s the million-dollar question. I mean, I’ve been in business for 36 years, so I’ve seen a lot of changes in our industry, and it’s all for the good. We’re definitely, across the board, becoming more professional. Not your typical gumshoe of how we’re being portrayed in the movies. We’ve definitely come a long way, but if you can get a recommendation from someone who has had experience with that investigator, then that’s going to be the most important thing. I mean, every case is not going to go perfectly. You may have a friend who hired a PI and they maybe got caught, or they lost the guy. I mean, it happens to all of us. But you just want to make sure that that investigator is, number one, licensed – if your state requires a license. Again, if you can get that recommendation, especially from an attorney because they use them regularly, they may have had a year or more than one year experience and multiple cases with them. This is, yes, hey, these folks do a good job. Communication is key. That’s the one thing that we pride ourselves on is that if you’re going to hire us to do surveillance, you’re going to know exactly when we’re doing surveillance. We communicate with you during that surveillance. And so that’s what you should expect if you go hire an investigator in any state. You should expect feedback. You should expect suggestions on what to do and when. We’re going to offer our recommendations, but ultimately, it’s the client’s decision when they want their spouse followed. And so we would honor that request. Then also, just budget concerns. Most investigators are going to require a retainer up front, and they bill against that retainer at an hourly rate. And so you want to be notified when that retainer is used up before you continue. The worst thing in the world is to get a $3,500 retainer from a client, and then you don’t notify them until they’re $8,000 in. That’s the one thing that we work really hard at is just keeping our clients up to date. It’s like okay, you’ve spent this much. You want five more days of surveillance? Well, we’re going to give it to you, but let’s get another retainer and work towards that milestone again.

Jessica: Right, yes, I think that no one would welcome all of a sudden, like you said, finding out you’re in the hole. I mean, I’m sure it varies to some degree state to state, is there a ballpark amount that someone should expect, that would be charged? I don’t know. I mean, I don’t know what a retainer would cost for investigator. I mean, knock on wood. Thankfully, I did not have use for a private investigator, so I have no idea.

Jan: Yeah, it is going to vary. It’s going to vary from state to state, from investigator to investigator, but also from case to case, because some cases will warrant two investigators on the surveillance. Some cases, it’s an out-of-town trip. That’s going to be more expenses involved, more hours involved. In some cases, there’s just so many hours of opportunity that you’ve got more hours to cover. And so we typically start out with a $3,500 retainer. I would estimate that somewhere between 3,500 and 5,000 would be a reasonable retainer to start with, depending on what your requests are.

Jessica: What are some things that people should know about in terms of what not to do when working with a private investigator? If you decide to bring one on as part of your case, I feel someone’s probably angry and bitter and there just might be behavioral things that you may have to warn your clients about. What are some of those do not do’s?

Jan: Definitely do not confront. Do not share any feedback that you’ve gotten from your investigator. For example, we may follow a guy one night after work, and he goes to dinner with his girlfriend. We realize it’s the girlfriend because there’s a romantic inclination, and maybe he kisses her goodbye and they leave. Well, that’s not solid evidence of adultery. And so you don’t want to have your client confront him the minute he comes home. We definitely report back to our client, and we let them know what we’ve got, but we give them a stern talking to like, look, you don’t have solid evidence. He could easily try to explain this away. You don’t want to confront him yet. I know that is the hardest thing for our clients, because sometimes it takes a while. It may be, usually not more than several weeks, but it could be several weeks into the process that they’ve just got to try to behave normally, go through their daily routine normally, and just not confront them. I tell my clients, I say, just don’t shoot yourself in the foot, because that’s really what you’re going to be doing if you confront them.

Jessica: Right, and then it just, I guess, negates the process that you initiated, to begin with. You now as the private investigator, you and your team have done the job, so to speak. The evidence you’ve found, for whatever reason you were hired, you have the evidence. The couple goes to court. What should someone expect in terms of the role of the private investigator during the court process, or during the lawyer of negotiation, even if they’re not litigating in court? How involved are you in the rest of that process?

Jan: Not terribly involved. So an investigator is going to–we’re going to submit our report. We’re going to submit video, photographs, every–the evidence that we have, it’s going to go to the attorney and the client in a nice little package. Then they’re going to use it however they see fit in the case and however the case progresses. And fortunately, most of the time, once we get the evidence, it doesn’t go to court. We do testify, but it is a small percentage of the time in comparison to the number of cases that we work. But if we do have to testify, of course, we’re there. It depends on what the hearing is about. If it’s a hearing, if it’s a trial, sometimes they’ll use an affidavit from us. We have cases here where there are particular hearings that are limited to 30 minutes. It’s very hard to call witnesses in 30 minutes, but sometimes they do, and you’ve got to get up there, and you’ve got to get information out very quickly. Sometimes they just use us to admit the report. But typically, in a true trial, then we would testify as to our observations. In North Carolina, we have to prove opportunity and inclination for evidence of adultery. We would testify as to what opportunity we had. That might be them together in a hotel room overnight, or spending the night at someone’s apartment or somebody’s house. It doesn’t even have to be spending the night. I mean, we’ve certainly seen people having sex in the backseat of cars before, or the front seat. It really doesn’t even have to be the backseat any more.

Jessica: I mean, and then to think that a photograph of that is going to be submitted as part of a court case is hugely embarrassing. That brings me to another question, which is, how much evidence do you give or show the opposing party before it’s all brought in? Because as you said earlier, having the proof that someone had an affair gives you leverage in certain areas. I mean, are they showing the spouse I have photos of you having sex in the front seat of the car? How much information are they giving them to use that leverage?  

Jan: Well, my advice to the client is let your attorney use your leverage how they see fit, to what degree they see fit, and when they see fit. Typically, if the attorney tells the opposing counsel we have evidence of adultery they’re not going to call their bluff. They’re just going to say, okay, we get it. But the client is always going to want to have their aha moment. And so that’s what I tell them. I say, okay, you cannot shoot yourself in the foot today. You will have your aha moment. We just need to wait until we get enough evidence. I don’t typically encourage the client to show them anything if it’s the client confronting the spouse, because you don’t want to show them what you have. Because then that tells them what you don’t have. If we do happen to have a case that’s not terribly strong, and it has happened maybe just that one dinner where he kisses her and there’s nothing else, then he knows you don’t have anything else. That’s why it’s just really important to not confront until you’ve consulted with an attorney, or at least have a path and have some advice from that attorney as to what your options are.

Jessica: I love the tip in terms of if you’re getting a recommendation, to get a recommendation from a lawyer, which makes obviously so much sense. But as you know, people going through divorce, your mind is all over the place. You’re not always necessarily thinking straight. Who knows where people are getting investigator’s names and referrals from? But tell us, if someone hires a private investigator, and they are not feeling like they’re vibing with them for whatever reason, what would be to you reasonable things to look for or to note, that means that you should fire this private investigator and not continue to move forward with them?

Jan: Well, I mean, I think probably the most important thing is that communication. If you’re not hearing from your investigator for days and weeks, then that’s clue number one. If they haven’t laid out a plan for you, or made a suggestion and said okay, Friday afternoons maybe are a good time because they get off work at noon that day, and then they don’t come home to the kids until 6 pm. So, okay, what are they doing? There should be some logic to a plan. The investigator should be able to help you come up with a plan as to when to do surveillance. You really should feel that right away. You should feel that the investigator has experience and can speak with confidence and can speak from experience. Not necessarily that they’re sitting around telling war stories, because the client doesn’t want to hear that, but you can just tell that they’ve been there and done that. And so I feel that’s really important. You just need to feel you’re getting that communication, you’re getting suggestions, and you’re getting feedback from them. If they’re not responsive for a day or two, that’s too long in my book.

Jessica: Oh, wow, a day or two?

Jan: Yeah, our clients get called back. Sometimes we know if it’s not urgent, but in a typical situation, if a client reaches out, I mean, they have our Surveillance Case Manager’s cell phone. They can text. They reach out, and they’re going to get a response. Maybe not at 2 am, if it’s not urgent, I mean. But if we’re out working the case, and it’s 2 am, then they’re going to get a response. That’s just the most important thing. I mean, if you’re sitting home wondering, hey, I wonder what my investigator’s doing today or tomorrow or the next day on my case, you shouldn’t be thinking those thoughts. You should know exactly what the plan is. Once that plan is implemented, you should know the results of the plan.

Jessica: Okay, that’s fair enough. Then I guess there’s not, I’m going to answer my own question, but in terms of how long–well, just what’s an average job? I mean, if someone’s hiring a private investigator, at what point would you say to someone we’ve been on this case for X amount of time, and the truth is, we’re not finding what you need? Or you’re like we already found what we need in three days, how much longer does it have to go on? I’m just curious how that’s determined.

Jan: Yeah, and there are a lot of factors that go into that. I mean, really, say, for example, if we’re not finding any evidence that they’re seeing someone, then we need to make sure okay, are we picking the right times, has that person had plenty of opportunity and just nothing is happening, and have you spread it out over some time? You don’t want to pick just one weekend and say oh, he didn’t do anything. Because the girlfriend may have been on vacation that weekend, or the girlfriend may have had her kids that weekend and she has an order not to introduce them to her boyfriend. You want to spread it out over some time. That doesn’t necessarily mean 60 hours of surveillance. It just means a good sampling of his opportune time to make sure that he’s not seeing someone. If we are gathering evidence, then a lot of factors go into that. You’ve got to take into consideration how much money is at stake? Are they a dependent spouse? It doesn’t have an effect on child custody, but you just have to take those factors into consideration. If we have a client that doesn’t have an attorney, then we’ll try to connect them with the right attorney for them, maybe before we stopped surveillance just so that they can get some advice midway to see how much further to move with the surveillance.

Jessica: Okay, well, that’s also an interesting side of it, that some people are hiring you makes sense before they even hire a lawyer, because they’re just trying to start the process to see whether or not this is the road that they’re going to take. Then all of a sudden, they find out yes, and so it’s like the opposite referral process. Well, this conversation is fascinating. I feel there’s so much more to be discussed. I think we’re definitely going to have to have you back. But I do have just a personal question. How did you get into this business?

Jan: The million-dollar question, right?  

Jessica: Well, I, again, don’t want to be stereotypical, but I think that most people probably expect private investigators, the majority, to be men. There’s that whole anomaly part of it as well. But yes, please.

Jan: Yeah, I mean, females are growing in our industry, there’s no doubt. I’m a member of NALI, which is the National Association of Legal Investigators. We have just an awesome group of female investigators. And so it’s just really been fun to watch over the years. For my path, it was not necessarily what I planned. Most people think that investigators come out of law enforcement. But really, these days, you have journalists that become investigators, librarians that become investigators. I personally thought I wanted to be a legal secretary when I grew up. I went to secretarial school and started working for a law firm and worked there for a couple of years, and then just sort of slowly migrated into the investigative industry. I do feel like in 1986, there were only two other investigators in Charlotte, where I’m located. Both of them were men. I do think that I hit it really at a good time. Because number one, I was one of the first females around, and I came from the legal industry, so I had that professional background. I had that foundation. I’m not an attorney, I don’t practice law, but I had a foundation from the great experience that I gained from being in the law office for a couple of years.

Jessica: Should someone care whether or not their private investigator has a police background or something more like that?

Jan: No, I don’t have a law enforcement background so–  

Jessica: I know you don’t. And I love the fact that you came from legal because I mean, I feel, for exactly what you do, it seems really like the perfect fit. I feel, not knowing anything about the industry, my assumption would be that most have more of a police background or something like that.

Jan: It’s probably the majority for sure. But for example, I mean, I’ve been in business for 36 years. Again, I spent probably almost 20 years doing first-degree capital defense work, so criminal defense work. And so you would think well, do you have to come out of law enforcement? Well, my answer is no, you don’t. I mean, I had wonderful attorneys who I worked with and trained and ended up working nearly 275 first-degree cases. You don’t necessarily have to have that law enforcement background for sure.

Jessica: Okay, well, that’s a good tip for people if they’re looking at people’s bios or something like that. All of this is really fascinating and really insightful, and I hope will help people not feel so anxious about the idea, and make it seem less scary if they have to bring in a private investigator.

Jan: Yeah, I mean, really, part of what the investigators should be doing is to put you at ease. It is definitely scary to make that call or send that first email. But once you get on the phone with the investigator, you should start to be feeling a little more comfortable. You should be being put at ease that, hey, this person has been here and done this before. There are other people that have been in my situation. It should not be intimidating after you’ve made that first phone call. That’s probably a good tip. If you’re not feeling that comfort, then you should probably reach out to a different investigator.

Jessica: Yeah, that makes sense. That makes sense. Well, fascinating. Thank you so much for taking the time and for shedding all of this light on a topic that I think a lot of people need in a very vulnerable and dark and overwhelming time. So really appreciate you explaining it all to us. For anyone who’s interested in finding out more about Jan or Barefoot Investigations, check out We’ll have her full expert profile with all of her contact information and links to go find her. We’ll see you next time.

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