As I have cautioned previously, the information an applicant divulges – and the information investigators obtain – in security clearance background investigations can be used against the applicant for a variety of purposes. Most obvious, perhaps, is in a criminal case for false official statements or previously undiscovered criminal conduct. Less obvious: divorce and child custody cases.
When “I Do” Becomes “I Don’t”
Recently a ClearanceJobs.com visitor posed an interesting question on the website: “Can I subpoena my spouse’s ‘security clearance’ in divorce proceedings?” Like much in the law, there is no simple answer to this question. Divorce cases (and subsequent child custody proceedings) are matters of state law which are governed by a dizzying variation of statutes, evidence rules, and local customs. It would be absurd to attempt a state-by-state analysis – and I do not intend to try. However, there are some general legal principles worth understanding.
First, the term “security clearance” applies to a status as opposed to an object or a person. Specifically, a security clearance is an authorization by the government for an individual to access classified information. One cannot subpoena an intangible object. So I am going to make a logic leap and assume that by “security clearance” this spouse on the warpath was really looking for paperwork that was generated during the course of the background investigation.
The “Smoking Gun”
There is good reason why a jilted spouse might want the other spouse’s security clearance paperwork; we’ve actually counseled divorce attorneys on the evidentiary value of the information it contains. For example:
A spouse’s sworn admissions to psychological instability or substance abuse on security clearance paperwork may carry significant weight in child custody determinations.
Criminal history – the kind disclosed or obtained during a security clearance background investigation – may be used to impeach (discredit) claims or testimony regarding important issues in divorce cases (like the existence or non-existence of domestic violence).
Admitted or discovered infidelity is often the very reason for a divorce. Although the legal value of this information has receded in importance with the advent of ‘no fault’ divorce, it still provides fertile grounds for character assassination.
Finally, a spouse’s dual citizenship and/or extensive ties in a foreign country may raise serious concerns about parental kidnapping that find a sympathetic ear with a judge weighing child custody assignment. Keep in mind, however, that this issue can be a double-edged sword if the spouse was actually granted the security clearance (thus apparently earning the U.S. government’s trust anyway).
These are just a few of the many creative ways that a good divorce attorney could hypothetically leverage a spouse’s security clearance application or investigation records in his or her client’s favor. In light of the myriad possibilities, my personal philosophy is that a divorce attorney who doesn’t pursue the opposing party’s security clearance records is doing his client a serious disservice. So how does one do that?
Access Granted
As a general matter, a third party not in litigation with the federal government will find it difficult (if not impossible) to subpoena the federal government. The alternative is to simply make a discovery demand that the cleared spouse turn over any security clearance applications, reports of investigation, or other related papers in his or her possession. Unfortunately, it is unlikely that a spouse could be compelled to obtain this documentation from the government if he or she did not already have it.
The lesson here is two-fold:
A spouse who intends to file for divorce should find out what paperwork the defendant spouse has in his or her possession before filing.
Cleared spouses with shady pasts and angry partners should probably invest in a good shredder before that happens!*
*Warning: If you reasonably anticipate litigation (or have already been served) destruction of potential evidence may subject you to criminal and/or civil sanctions.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
