Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com
In my last article, I addressed whether can you sue (or be sued) for a bad security clearance reference. Readers from around the world contacted me with follow-up questions, the common thread being bitter ex-spouses. You may know the type: the ex-wife or ex-husband who has been eagerly waiting to tell your background investigator just what a miserable lying sack of garbage you are, how you abused him or her regularly, and how you just might be a foreign spy. Think these types of allegations sound extreme? They happen all the time.
Ironically, one of the most lurid sources of such allegations is not the ex-spouse her/himself. Rather, it is something many clearance holders don’t think about – the legal filings in divorce court. As part of your background investigation, the government will interview any ex-spouse divorced within the coverage period of your investigation and also review the records of the court case. My experience as a former investigator was that frequently, by the time a subject’s ex-spouse was contacted, it was several years out from the divorce and tempers had cooled down considerably. On the other hand, the legal filings are done in the midst of divorce with passions running high and major issues like child custody and spousal support at stake. This often translates into baseless allegations that would be considered defamatory in other contexts.
Unfortunately, even the most scurrilous allegations made in divorce court filings typically are shielded from defamation lawsuits because of the “litigation privilege” (the idea that parties to a lawsuit must be free to present their case fully and without a stifling of the facts). That means that your background investigator gets to see all the ugly details – even baseless allegations – and your security clearance could ultimately be impacted. Here is how you can help prevent that:
If You Are Getting Married:
Consider a pre-nuptial agreement that is specifically tailored to prevent reputation assassination. (It’s not paranoia in a country with a 50% divorce rate). Such agreements have been used in the celebrity world for some time and have spread in popularity with the rise of social media – where an angry ex-spouse can now destroy your reputation with one Facebook rant. These agreements can be of great benefit to security clearance holders because they effectively prevent your spouse from saying anything that would negatively impact your clearance if the marriage goes south.
If Divorce is On the Horizon:
Handle things informally, if possible. Many states offer alternative methods of “collaborative divorce” or mediation that keeps scandalous details out of public records. If your spouse agrees to such a process, he or she will likely have a better experience in the divorce and less lingering hostility to spew to your background investigator. As an added benefit, you can often save serious money on legal fees and avoid some of the more nasty aspects of dragging your marriage through court.
If You Are in the Midst of Divorce:
Consider bringing in a security clearance attorney to consult with your divorce attorney. A security clearance attorney can provide invaluable tactical advice for minimizing fallout on your security clearance down the road.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.