The Most Important Document in a Divorce Case: The Financial AffidavitSubmitted by Ullmann Wealth Partners on January 20th, 2021
Author: Pat Kilbane, J.D., CDFA®
January 20, 2021
While divorce is certainly not my favorite subject to write about, it is necessary to cover to keep our clients and friends informed. Even if you are happily married, odds are one of your family members or closest friends will be a party to a dissolution of marriage proceeding. While January is generally the busiest time of the year for divorce attorneys, the COVID-19 pandemic only promises to substantially increase the number of new cases filed in the first quarter of 2021.
At the beginning of any divorce case, the lawyer will request a lot of information, documents, and financial statements from the client. The client may feel extremely overwhelmed at this point. Fortunately, there is enough time to gather the information needed, so the client should not feel pressure to gather all the information and provide it to their lawyer immediately.
One of the documents the lawyer will request his or her client to complete is called a Financial Affidavit. While I am sure Financial Affidavits are not unique to a Florida divorce case, each state may have their own version of this document. Please click here to see what a Financial Affidavit looks like for yourself.
That sense of feeling overwhelmed may return when the client flips through the eleven (11) pages of the Long Form Financial Affidavit. So, what is an affidavit? An affidavit is a written declaration made under oath before an authorized official like a notary public. In other words, the affiant (the person making the affidavit) is swearing under penalty of perjury that all the information they have included in their Financial Affidavit is accurate to the best of their knowledge.
While completing the Financial Affidavit may seem like a daunting task, when it is broken down into its four parts, it really is not so bad. The four parts of the Florida Financial Affidavit are: (1) Income, (2) Expenses, (3) Assets, and (4) Liabilities. In essence, the affidavit is a summary document where the client is swearing to the truthfulness of their finances. Now, let us breakdown each section and why it is important in a divorce case.
Section I: Income
If you are an employee, the income section should be easy to compete. You merely take your paystub, extrapolate what you earn monthly and disclose that information. Other sources of non-employment income such as investment income must also be declared. The income is especially important for cases involving a party that is self-employed. Self-employed litigants can set their monthly salary, take distributions, retain their earnings in their corporate entity, and use their business to pay personal expenses; they can manipulate their income. The amount of income a self-employed litigant declares on their Financial Affidavit should be verified against what they report to the IRS, what they disclose on loan applications, and how much they spend. Of course, the parties’ incomes serve as the starting points and the main variables in determining the issues of alimony and child support.
Alimony and child support may be increased or decreased at some point at the conclusion of the divorce case. The Court will modify these payments if one of the parties to the case can prove that since the entry of the Final Judgment of Dissolution of Marriage that there has been a substantial change in the parties’ financial circumstances. To prove a financial change in circumstances, the Court will need to know what the parties’ financial circumstances at the time of the divorce. The best way to establish those financial circumstances is looking to the parties’ Financial Affidavits.
Section II: Expenses
The fact is most people do not have any idea how much it costs to run their life. This section helps the court understand what a party’s monthly living expenses are – including expenses they have for any children. The best way to figure out your monthly expenses is to look back over the last twelve (12) months at all over your spending sources: checking and savings accounts, ATM withdrawals, credit cards, PayPal, Venmo, and any other means you use to spend money. For expenses that will not result until the termination of your case, such as health insurance, secure an estimate for your new monthly premium to be included on your affidavit with a footnote explaining your expense. If you have an expense, but are unable to get the exact amount, you are free to estimate the expense with a corresponding footnote identifying the amount as an estimate. Finally, if you have an expense, but you need information from your estranged spouse to complete your affidavit, but are up against the deadline, you can estimate the expense, footnote it, and file an Amended Financial Affidavit once you receive the necessary documentation.
The expense section is most relevant for an alimony case. This section will give the Court a great understanding of what kind of lifestyle the parties lived during the marriage. The difference between a party’s income and expenses – either a monthly surplus or deficit – will help the Court determine what ability there is to pay alimony and whether the other party may have a need. The court will then look to those expenses to see whether they are reasonable or inflated.
The expense section is not highly relevant to a child support determination because, in most cases, the child support amount is determined by a formula.
Section III: Assets
In this section, you merely list any item you own that has any significant value along with what you believe the asset’s fair market value to be. If you do not know, it is acceptable to list “unknown” or “to be determined” for an asset’s value. For example, you might not know the value of a business or a home without an appraisal. When you can determine the asset’s value, you should file an Amended Financial Affidavit. Finally, you must identify any asset you allege is non-marital.
This section is relevant for the equitable distribution issues. The Court wants to know what the assets are, whether they are marital/non-marital, and whether there are any disagreements between the parties as to their values.
If one of the parties fails to disclose an asset on their affidavit, this could be grounds to re-open the case to equitably distribute the asset.
Section IV: Liabilities
The liabilities section is very similar to the assets section. The Court wants to know the extent of the parties’ liabilities, whether they are marital or not, and what the balance of each liability is. If you are aware that a liability exists, but you are unable to determine the balance of the liability, list it on the affidavit, and report the balance of the liability as “unknown.” When you can determine the balance of the liability, you should file an Amended Financial Affidavit. It is a good idea to check your credit report to see if there are any other liabilities you are responsible for but may have forgotten.
This section is also largely relevant to the equitable distribution issues. Of course, the more liabilities one party has, the more relevant they become to the alimony issue. However, any monthly installment payments for any liabilities should already be taken into consideration in the expenses section.
The Financial Affidavit contains a tremendous amount of valuable information for the parties and the Court in a divorce case. It is very important you prioritize completing this affidavit as accurately as possible. Each attorney will have their own unique thoughts and strategies on preparing your Financial Affidavit. Be sure to schedule sufficient time to discuss your affidavit with your attorney before it is filed. Hopefully, this post demystifies the affidavit and gives you confidence that you can accurately complete this task.
Pat Kilbane is the Director of Divorce Advisory Group, an affiliate of Ullmann Wealth Partners, and is also a Wealth Advisor. Prior to joining the firm, Pat practiced family and matrimonial law for nearly a decade. He had previously worked as a Shareholder for the statewide law firms Gray Robinson, P.A. and Rogers Towers, P.A.