When you need an asset search while contemplating or in the midst of a divorce, there are the usual kinds and the highly complex kinds.

It’s one thing to look at a guy with two houses, a small fleet of trucks and two heating and cooling businesses. You may find an extra house, or that the businesses are funneling money to another company or two your client didn’t know about. But that is not highly complex.

By “complex,” I’m talking about husband and wife who jointly run ten businesses with sales in the millions, and who each maintain a few businesses not jointly owned. Each accuses the other of fake invoicing to take money out of the joint enterprises. They allege that the wholly owned businesses are artificially depressing their values. There are overseas trusts – set up by both but with one side accusing the other of fraud by inducing payment to a trust that was never funded.

The initial batch of documents from both sides (before follow-up demands for production), including bank statements, the suspect invoices, the trust documents and more, run into the hundreds.

We sometimes get asked by the lawyers drowning in all of this:

  • What do we have?
  • What are we missing?
  • What do we need to ask the other side for?
  • What does our side need to tell us that they are not?

You Won’t Crack This in a Week

Lawyers who hire us to make the roadmap know that our report isn’t the end of the asset search. It’s part of the beginning. You ask for material, and then you have to read it, make sense of it, judge how responsive it’s been.

Sometimes there is additional useful material (bank statements for companies you’ve discovered, for example).

Sometimes that extra useful material prompts further requests in discovery (those bank statements reveal lots of transfers to yet other new entities, seemingly controlled by the other side).

Sometimes one of the suspect invoices to a vacation home in Lake Tahoe (an odd place to order industrial supplies) turns out to be the home of a suspected ally of the other side, and he happens to have other companies run out of the vacation home. Since he does business with the spouse’s entities, he is someone you would want to talk to (on the other side of a deposition table, perhaps).

Plugging Up Rabbit Holes

Another function of a good road map is to figure out where not to spend time and money digging. Sometimes a spouse gets fixated on transactions the other spouse conducted nine years ago. If you dig a little and find that the company involved has long been insolvent and never seems to have done significant business, you can probably leave that avenue of inquiry aside.

For now, at least. You can’t look everywhere, and sometimes an initial impression can be incorrect, but if you have limited budget and time (always the case), you have to go for the higher-probability hits.

Photo: OpenStreetMap contributors – OpenStreetMap.org, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=10839661

The toughest nut to crack in many divorce asset searches is the private company. While people always want immediate access to bank accounts (and aren’t allowed to get them without discovery), you can always start to try to figure out what someone’s private company is worth.

If a U.S. company is private, it doesn’t have to publish its earnings. If you know the name of the company, you can subpoena its tax returns, but it’s well known that many companies look a lot less healthy to the tax collector than to the accountants figuring things out according to generally accepted accounting principles (GAAP).

As a matter of public policy we endorse two different valuations (tax and GAAP), but how do you know how much a company is really worth? Many divorcing parties suddenly encounter “a bad year” just around divorce time, pleading that their company has taken an economic hit. Sometimes that’s true, and sometimes it’s a lie.

There are business valuation specialists, of course, and many of them operate on the basis of comparable value: What does a similarly sized company in a similar place go for? That’s roughly what your spouse’s company would go for. Unsurprisingly, many divorces feature dueling valuations.

Better to Investigate Before the Valuations People and Forensics

We often get called in before the valuation people, and we like to be involved before the forensic accountants too. The more information both professionals know is there and is missing, the better they can do their jobs.

What follows is an abbreviated list of some the ways to figure out how well a private company does.

  • Litigation. If a company gets sued by someone who knows it well (because they worked there or did business with it) all kinds of interesting facts can come out in the pleadings. We once needed to find out how big a company was when our client was deciding how much to offer for the trademark. A former warehouse worker said in a lawsuit that the loading dock employed 35 people (more than we would have guessed). Former employees and associates are also great people to interview.
  • Property tax records. If a company occupies an entire city block and we find no tenants in the building, we know it should be taking in well over what it pays in taxes (or else it should be moving soon or going out of business).
  • Regulatory filings. A company may be private, but if it wants to raise $5 million from investors, it has to file notice of this so-called private placement. If a company has consistently raised millions over the years, someone probably thinks it has value, even if it has yet to turn a profit. Those people could be good to interview too, because owners of private companies need the earnings every year for their own taxes.
  • Foreign filings. Private companies in the U.S. don’t disclose earnings, but companies of all sizes in the United Kingdom do. Never assume what’s off-limits in this country is off-limits everywhere.
  • Regulatory filings. Companies may not have to tell you what their profits are, but sometimes other figures are public. Take lobbying firms: they disclose all their sales in filings to the U.S. Senate under the Lobbying Disclosure Act of 1995.  You can see all the clients there and how much they’ve paid. There are estimates of what a lobbying firm’s profit margin should be, and there you go – a rough estimate of how much money the firm makes.
  • Finally, company boasting. People not about to get divorced love to talk about how much money they make, how well their company does, and how much better they are than their peers. Say your subject’s company is private, but in a news release they claim to be the most profitable firm in their peer group. If one of the peers is public, you can use that to estimate the baseline profitability of the company. The great thing about some news databases is that they keep every single news release by the company, even after it’s been wiped off the company’s own website.

Private companies can be hard to crack, but with some creativity and patience, it’s surprising what you can sometimes find out about them. It will take a lot more than a bit of Google searching, but it can often be done.

We’ve written before about the illegal trade in bank account information that a lot of investigators and lawyers get mixed up in. See for instance That Bank Account Information Your Investigator Got? Probably a Crime.

Without a court order or subpoena, banks just are not supposed to hand over account information except in extremely limited circumstances. Wondering prior to filing for divorce how much money your husband may have hidden away is not one of those exceptions. You can read a longer treatment of this topic that I wrote for the American Journal of Family Law.

So, what else can be done in the way of finding bank accounts by using public records? A lot, it turns out.

Most couples know where the other spouse has banked for years, and often they bank at the same institution. Most people change banks when they want to hide their assets. When it comes time to subpoena, the process isn’t terribly expensive. While it’s impractical to send subpoenas to the thousands of banks in the United States, there are ways to narrow the field.

  • A newly found business with financing from a new bank. Say you find out that the subject has bought a condominium in the name of a new limited liability company. We see this all the time. The mortgage is not from one of the banks he’s used for years, but from a brand-new bank. Subpoena that bank, because sometimes banks will offer you a better rate if you move some of your money into a checking or savings account too.
  • If the bank has affiliated firms in other states or asset management arms, subpoena those too. We’ve seen cases in which an attorney subpoenas a bank the couple used, but neglects to go after other institutions in the same financial family. If the husband’s bank’s parent company happens to own a trust company in South Dakota, you need to look there too. South Dakota allows self-settled spendthrift (asset protection) trusts, which can run on – literally, according to the law — forever. You get two years from formation to challenge them. Similarly, if the bank has a Delaware asset management arm that has created hundreds of numbered LLCs, chances are one of those could benefit the other spouse in the divorce.
  • Watch carefully on all documents for where they are notarized. If an estranged husband who is supposed to live in Maryland is signing documents in front of a Nevada notary, you need to ask why that might be. Most banks have notaries on staff. If your husband’s notary works at a Las Vegas bank, you need to be asking that bank for his records.

One extra thought about notaries: Some states require notaries to keep journals of what they notarize and who appeared before them. Those journals are usually public records. If an estranged spouse signed something in a bank, see what else that notary did with the spouse. Perhaps he bought property and signed a mortgage in front of that notary. Or if you’re lucky, both the spouse and the counterparty signed in front of the same notary, and you would have both sides of the transaction right there in notary’s journal.

Judges care about this stuff

It’s all a lot more work than paying some underhanded company a few bucks to impersonate someone else and illegally obtain bank records, but it has the advantage of being legal.

Earlier this year, after explaining to a client why I couldn’t get bank account information without a court order or subpoena, another client called. We had assisted him in covertly filming a warehouse full of fake goods. The client told me that when he appeared in federal court to apply to have Marshalls seize the goods, he also asked the court to seize one of the counterfeiter’s company bank accounts.

The judge shot back, “How do you know about this bank account?” The client had a good response, that the counterfeiter had given us wiring instructions for buying the counterfeit equipment. We were not asking for all the bank accounts, just the one he had given us.

Do not be in the position of having to explain to a judge how you got evidence you’re not supposed to have. Judges are people too. They get angry, and if you are in court, you don’t want them to be angry with you.

We’ve written many times about the questionnaire we hand out to clients who want a divorce asset search. If you want one, just contact us and we’ll send it along.

Based on the many questionnaires we’ve reviewed over the years, here are some tips on what kinds of questions you the divorcing party should be asking yourself as you contemplate separation, divorce, and compiling information on what is rightfully yours:

  • What properties do you own? (The answer may surprise you.)

On two occasions this year alone, I have had clients tell me that they thought they and their husbands owned at least three properties. In one case, I had to inform the client that she had never owned a particular piece of expensive farmland. Her husband had bought it in the name of a new company she knew nothing about, and then one month later sold it to a different company (associated with his mother) for $1.

If our client’s lawyer had asked about this piece of property at a deposition and the husband had said, “No, I don’t own it,” he would not have been lying. Now we knew about it, plus a bonus piece of property: That new company had also bought a vacation home in another state. Because we had the company name, we had the vacation home too.

On a different case, we found that one of three buildings had been sold two years ago because it had belonged not to the husband and wife but to the husband’s now-defunct company. A second building was still under the husband’s control, but in the name of yet another company. In both cases, we were not sure how much of each company the husband had owned or still owned. That was work to be done in discovery.  

  • Is that previously owned business really in the past, or is it still going?

Our client’s husband once had a company doing business and holding property in his home state on the east coast. That company had not filed its annual return in years and gave the impression that it was no longer active. It turned out that upon inspection, the company was domiciled in Delaware, not the state the husband had lived in. The registration in his state was old, but when we pulled the corporate tax records out of Delaware, he was still paying $300 a year to keep the Delaware company going. Nobody does that for an inactive company.

Later we found that the Delaware company was the way the husband was being compensated for sitting on several boards of public companies. Deep in some public securities filings was the name of the Delaware company, in a footnote to the compensation the husband was getting from the company in the form of fees and stock options.

  • Is the main business really the main business?

Husbands have a way of having really bad years in business around the time they are getting divorced. One husband we investigated recently had quietly formed a brand new company with his business partner, about a year before leaving the marital home. The new business had no internet presence and no publicity attached to it. We suggested that in discovery, our client determine that revenues were not being diverted from the company she knew about to this one we had discovered. That could happen with a switch in how he got paid, or else the new company could show up as a vendor to the old company. Both are common tactics.

THE TAKEAWAY: People getting divorced often know more than anyone else about their spouses. But as much as they know, it’s dangerous to assume that they know enough to run the asset search. Confirmation bias (the idea that you know what you’re going to discover before you start looking) is part of human nature. A new set of eyes on what looks like familiar territory can be just what an asset search needs.

Could someone getting divorced use artificial intelligence to conduct an asset search? Sure, it just wouldn’t be a very good one.

It’s hard to get that far into your day right now without hearing about ChatGPT, the artificial intelligence program that is making professors change their exam questions and prompting fabulous cartoons about its lack of a moral compass.

As an investigator, I had two thoughts:

  • Could this thing replace me one day?
  • Could I have a look at it?

The more I have looked at artificial intelligence, the more bullish I have been about the rosy future for investigation. AI and greater computing power will generate volumes of data we can only dream about right now. Automatic transcripts of every YouTube video, for example, would mark an explosive change in the amount of material you would have to work with in researching someone. So would the ability to do media searches in every language, not just the small number offered by LexisNexis. I wrote about this in a law review article a few years ago, Legal Jobs in the Age of Artificial Intelligence.

More data will mean more things to research and interpret.

I haven’t yet tried ChatGPT, but after getting as far as their own disclaimers, I wondered why none of the stories I had read about the program mentioned this. Here’s what it says at ChatGPT.pro:

Like any other machine learning model, ChatGPT has certain limitations and limitations that users should be aware of. Some of the potential limitations of ChatGPT include:

  • Dependence on data: ChatGPT is a machine learning model that has been trained on a large corpus of text data. As a result, the quality and accuracy of the model’s responses will depend on the quality and diversity of the data that it has been trained on. If the model is not trained on a diverse and comprehensive dataset, it may generate responses that are not relevant or accurate.
  • Limited understanding: While ChatGPT is able to generate highly accurate and fluent responses to prompts, it does not have a deep understanding of the world or the ability to reason like a human. As a result, the model may not be able to generate responses to complex or abstract questions, or to understand the context and implications of a given prompt.

Those are just the first two, but they would present a big problem for anyone who wanted a machine to do an investigation.

Dependence on data: Lots of people and companies we look at have little or no data to their names. Companies of subjects that have lawsuits that are not on line, people with multiple spellings of their names (due to fraudulent intent or different traditions of transliteration from another writing system). A person who doesn’t go to court and doesn’t get written about will not have a lot of diverse data for the program to parse.

Limited understanding: I would think it self-evident that if you can’t solve a mystery by using Google, you would want to assign someone with a deep understanding of the world, which ChatGPT’s creators admit it does not possess. That doesn’t mean your investigator should be able to recite odes in Latin and argue the finer points of the gold standard debates in the 20th century. But you want someone who knows to look a little more closely when a company has changed its auditor, a CEO resigns unexpectedly to “spend more time with family,” or when the manager of a “$600 million hedge fund” has an office above a bakery where the rent is $400 a month.

And when Husband takes stock payments through a company he told you was defunct, that’s another alarm that starts to ring. What else did he tell you that’s not true?

Complex questions and context. These are what we deal in, and these are ChatGPT’s weak points.

Never say never, but I think I can confidently sign another office lease or two before the bots come for my job.

In doing our investigations for assets in divorce, we often work with a forensic accountant. Sometimes they bring us into the case and sometimes it’s the reverse.

When do you need one, the other, or both?

  1. If you have all the pertinent records and you don’t think there is much being hidden, the forensic accountant is probably your best bet.

Say you have all the tax and business records you think are out there, but things still aren’t adding up. An accountant can do a lifestyle analysis that can indicate spending that isn’t supported by the stated income and assets. Records of banks, brokerages, and credit card companies give you details of sources of funds and where they are spent.

Credit reports are also critical. Those can give you bank and credit card information you didn’t already have.

A few examples of alternative sources of data include telephone records, UPS or FedEx records and airline receipts. These can get you to business relationships, sales and shipments to customers, travel activity, and major expenditures.

  • Interest – May indicate the existence of bank accounts, certificates of deposits, bonds, investment accounts, or loans receivable.
  • Dividends – Indicates the existence of bank accounts, investment accounts, stocks, or other investments in business entities.
  • Capital Gain or Loss – May point to investment accounts, stocks, business interests, or other investments.
  • IRA Distributions, Pensions, Annuities – Points to the existence of retirement accounts, annuities, or other valuable retirement assets.
  • Rental Real Estate, Royalties, Partnerships, S Corporations, Trusts – Indicates the existence of income-producing assets (real estate or business) or an interest in estates or trusts.
  • SEP, SIMPLE, Qualified Plans – Indicates retirement accounts for self-employed individuals.
  • IRA deduction – May also signify the existence of retirement accounts.
  • General Sales Taxes – This could point to the purchase of substantial assets.
  • Mortgage Insurance Premiums – Points to real estate.
  • Investment Interest Paid – Can indicate the existence of investment accounts.
  • Other Expenses (Investment, Safe Deposit Box, etc.) – This may point to investment accounts, safe deposit boxes at banks, or the like.
  1. You Have No Records or Incomplete Records, Try an Investigator

If you have nothing, think you have incomplete records or haven’t even filed for divorce yet, an investigator could help. We’ve written about this before with The Offshore Asset Starter Kit but usually recommend starting onshore.

What are the person’s businesses? Are there other assets and corporate interests he has never divulged? Old mutual fund holdings buried in securities records? An investigator can help find those.

Remember, a forensic accountant can’t analyze accounts of companies you don’t know about.

A lot of what’s out there is in public records. Anyone can get them, but the United Statese has more than 3,000 counties. Each keeps records in its own way, and a lot of the information is not on line – you have to send someone in there to look for it.

As I explain in my book, The Art of Fact Investigation, the real challenge of fact finding is in knitting together the output of various databases. More importantly, it’s playing smart hunches about which search terms to use and filing in the blanks the databases always leave. “John B. Smith and hidden assets and companies” as a search term will never get you very far.

  1. When you need both professionals

Once the investigator is done, you may still want an accountant if the numbers don’t make sense. Finding a new business is not the same as going over that entity’s books and records to see how they relate to known assets or yet further undivulged assets.

Sometimes, a forensic accountant will find a hole in the accounts that they can’t explain. Who is behind Argo Industries LLC, a payee for suspiciously expensive catering services? Is Argo really a way our person is paying himself? This is where an investigation can help.

Sadly, the answer is usually, “Longer than you’re willing to give me. You should have called me sooner.”

We get inquiries from time to time from divorcing parties who are going to trial within the next month or even just a few weeks. They want to know whether we can look for offshore assets in time for trial.

My answer is usually something like, “I would be wasting your money to start now.”

Asset searches – even without an offshore component — take time. Not years, but certainly weeks and to get to a usable outcome, often more than a month. This is how they work:

  1. You give us the other person’s name and any information you have about (let’s say for this example) him. You may do this using our divorce asset questionnaire.
  1. We turn over every public piece of information we can get on him. All of his companies (private and public), securities filings, mentions in regulatory records, and court cases involving him and his companies. We look at media, social media, dark web dumps, and more. Some of this information is on line, but court records especially are often still on paper and not available remotely. We have to send people to those places and have the papers scanned.

For overseas records, it all usually takes longer. It’s one thing to look up company records in England or France, but try doing a remote search on the United Arab Emirates or searching Cayman Islands corporate records for all the but the least useful stuff. You have to have someone there and it doesn’t get turned around overnight.

  1. The results from the first phase of an asset search may not turn up a killer finding that reveals $450,000 of cash sitting in a bank account. In fact, if you have access to bank accounts already, you should have been able to grab the low-hanging fruit by seeing where money was sent. If you are going to need to subpoena bank accounts (or anything else), that doesn’t get done in a week or two.

Oftentimes, our asset searches will discover a new company a person controls. While that moves the ball forward, it’s sometimes just the beginning of another phase of the litigation.

None of the above take into account the interviews that you sometimes need to do: Litigation opponents, disaffected former employees and others can reveal all kinds of good information. But first you have to do your research, find out who they are, where they are, and what to ask them about. Not a one-week proposition

All of this to say that it’s never too early to talk about an asset search, and it’s rarely too early to get going on one.

But being too late – that’s what can cost thousands or millions of dollars.

 

 

When people come to us for financial investigations, it’s rare that the information they are seeking is right out in the open. But sometimes, the values are not very far under the surface.

When the hints are there,  it can be a matter of simple arithmetic to figure out the answer. Other times, you can “back in” to a rough figure based on a bunch of other easily-accessed figures sitting right there on the public record.

  1. Simple Equation: How much did a house sell for when the price isn’t on the deed?

Some places such as Texas just don’t put property prices on the deed. You can approximate with asking prices in comparable homes. Elsewhere the answer is right there for you.

In California, for instance, everyone pays $1.10 per $1,000 of value when a home changes hands. That’s a rate of eleven one-hundredths of a percent, but easier just to write as 0.0011. The amount of tax paid is on the deed, so if someone paid transfer taxes of $5,500, you divide that by .0011 and see that they paid $5 million.

It seems simple and in retrospect, it is. But try handing an investigator a California deed and asking him to figure out the sales price. Many won’t be able to do it, so for any inquiry with any kind of financial component, they are not the investigator for you.

One thing to add: California deeds (and deeds in many other places) aren’t just sitting on the internet waiting for you to download them. You have to send someone to the county where the property is and get the deed in person.

  1. Backing In: What are the sales of a private company?

Private companies in the U.S. don’t report sales and profit figures. But unless it’s a perennial money loser, a company should have sales greater than its costs. Figure out what the costs are, and much of the time you can get a rough floor for what the company takes in based on some numbers that are sitting on the public record.

  • Rental costs. Say they have a big factory but they don’t own the building. You can find out the square footage of the place they rent from the county assessor. Then online, it’s not hard to find out what the prevailing rents are in that area. Dollars per square foot per year times the square footage, and you’ve got the annual rental bill.

You need to be careful about other tenants. If they share the premises, they don’t foot the bill for all the rent. If you’re on the ground you can often tell how many companies operate out of the building. But if not, Google Maps can show you how many logos are on the building.

This is not a precise figure we’re talking about, just an approximation. But if someone claims they operate a “mom and pop” micro business and you see a rental nut of $2.4 million a year, you can be pretty sure they’re hiding something.

  • Payroll costs. That kind of thing isn’t always public, but lawsuits are. We recently looked at a private company that was sued by a fired worker, who said in the complaint how many people worked in his department. We had been wondering whether this was just a small company or something much bigger.

The plaintiff’s single department in the company had 35 people. Even at minimum wage, you can figure that those people cost the company $31,200 each (never mind FICA, disability, worker’s comp and the like). Call it $1.4 million for just those people, not to mention the rest of the staff.

  1. Connecting the Behavioral Dots: Evaluating Signs of Financial Distress

How are the owners behaving? In a divorce (business or personal), you can expect some people to want to appear judgment-proof or at any rate, poorer than they really are. Big new mortgages can give the impression that someone is not taking enough money out of the business to pay all the bills and therefore has to tap home equity. But what if the big new mortgage comes just as social media reveals a $100,000 trip to Dubai and Morocco, staying in ultra-expensive hotels, all flying by private plane?

We once helped a landlord recover $72,000 from a longtime tenant crying business distress. Once we found that this tenant had recently gotten a bunch of valuable modern paintings out of hock at one of New York’s auction houses, the game was up, and he paid the landlord in full.

It all comes back to looking as widely as you can. While you can’t look everywhere, there is a tendency to limit where you do look for budgetary and time reasons.

Balancing economy with breadth is where fact investigation goes from science to art.

A client came to us and asked us to look for assets owned by her husband. They were going to get divorced and she needed to know what he had.

In briefing us, she told us that she didn’t know much, but one thing she was certain of was that a piece of property she and her husband owned was not worth much and not worth spending any time on. “I already know all about that,” she said.

In the space of an hour we found:

  1. The property was in fact very valuable.
  2. The husband and his relatives had secretly and improperly sold the property to his brother.

When we found the property, we saw that it was at the intersection of two interstate highways and contained a large facility to service long-haul trucks. There was no way this was a valueless piece of property. In addition, we told the client that she had probably not seen any of what should have been years of substantial rental income from the truck facility.

Even worse was the way her husband’s family had disposed of the property behind her back.

She had been induced to provide a signature specimen the year before and had never understood why it was needed. The husband’s family took that signature and convinced a county clerk to take it as her consent to sell the property. Worse still was the counter-party in the sale: A company controlled by the husband’s brother.

This was easily discoverable because the family had taken no measures to conceal the ownership of the purchasing company. A few dollars to set up a Delaware company would have done it, but they had assumed that the wife would never check and would never hire anyone to check for her.

The asset went from $30,000 in perceived value to more than $2 million. Our bill was $2,400.

The case is one I’ve discussed when I talk to the American Bar Association’s Section of Family Law and the National Association of Divorce Professionals. I belong to both.

Brief Us, Then Let Us Work

In addition to the obvious value to the client, the case stands for the proposition that as well informed as a spouse may be about their partner, there is often a danger that the spouse can turn your investigation off before it even gets going.

After all, if they knew everything, they wouldn’t need to hire someone to do the asset search in the first place.

So, in the nicest possible way, I tell our new divorce clients (in so many words): Tell me everything you know about them, be prepared for some questions along the way, and now please step aside and let us do our work. You may be surprised at what we come up with.

 

Want to know more about how we work? Our website has a wide range of publications and videos. You can also read my book, The Art of Fact Investigation which is available at bookstores online and for order from independent book sellers. And check out our other blog, The Ethical Investigator. We take you through the process step by step in Why Does My Investigation cost $2,400? A Breakdown of a Typical Bill.