Let’s Prepare Your Financial Affidavit
Does the law require me to file a financial affidavit?
The Florida Family Law Rules of Procedure require every person involved in a dissolution of marriage, paternity, or support unconnected with dissolution of marriage proceeding to file a family law financial affidavit. The Rules provide two different family law financial affidavits depending upon your annual gross income. If your annual gross income is $50,000 or more then the Rule requires you to file a financial affidavit in conformity with form 12.902(c). If your annual gross income is less than $50,000 then the Rule requires you to file a financial affidavit in conformity with form 12.902(b). Every person involved in a family law proceeding where alimony, child support, or equitable distribution is at issue must file a family law financial affidavit.
Please beware, Rule 12.540, Florida Family Law Rules of Procedure authorizes the court to set aside a final judgment based on a fraudulent financial affidavit without any time limit. In fact, in April 2023 the First District Court of Appeals in Mason v. Mason certified a question to the Florida Supreme Court, “Does the no time limit provision of Florida Family Law Rule 12.540(b) allow a delay up to ten years after final judgment of dissolution for filing a motion based on fraudulent financial affidavit?
The Six Components of a Family Law Financial Affidavit
A family law financial affidavit has six components regardless of your income.
Income
The first component is income. Income can be money that you have coming in from any source so long as that income is recurring and ongoing. Examples of income under the law include salary and wages, commission, overtime, tips, bonus income, business income, rental income, income from trust estates or royalties, income derived from dealing in property, and in kind income from benefits you may receive so long as those benefits reduce your monthly expenses.
Income can be difficult to determine unless you are a straight forward, salaried employee. In that case, your pay stubs and W-2 form is the best indication the amount of income you earn. Some employees have more in depth pay schemes than others. Any income that is regular and recurring is income to you for support purposes and must be included on the family law financial affidavit.
For example, if you earn $85,000 annually and you receive periodic bonuses, then your income for support purposes should include those bonuses. Take a look at your pay stub and take note of the pay end date. Determine the number of weeks from January 1st of the year to the pay end date. Therefore, if the pay end date is August 30, 2022, then divide your “year to date” total pay by 34.43 . The total of this calculation is your weekly income. Multiply that total by 52 (weeks in the year), then divide by 12 (months in the years) to determine your total monthly income.
Remember, the court will establish income for support purposes at any amount so long as there is “clear and convincing” evidence that you are earning or have the capability of earning that level of income. Your financial affidavit is not dispositive of the amount of income you earn. Your family law financial affidavit amounts to a sworn statement, subject to cross examination, as to what your financial situation is at the time of filing the petition for dissolution of marriage.
Deductions
The second component of a family law financial affidavit are the deductions you are entitled to under the law. These deductions include state and federal taxes, medicare, mandatory union dues, health insurance premiums (employee only), court ordered child support paid for children from another relationship, and monthly court ordered alimony actually paid. These items will be deducted from your income prior to the determining your support obligation.
Health insurance deduction is the most notorious deduction. If you provide health insurance for your family and your employer deducts the amount of your premium from your pay check, then you need to ask your employer for a breakdown of the monthly premium for each person covered under the plan. This is very important because the amount you pay for your any child’s health insurance could impact the amount of support you could be ordered to pay.
Monthly Expenses
The third component of a family law financial affidavit are the monthly expenses you claim. You should represent your monthly expenses precisely and with specificity. You should not forget to list any of your monthly expenses. If you pay your expenses on a different cycle, you will need to calculate the monthly cost of that expense. For instance, lets say you pay $100 per week for gasoline for your automobile. There are 52 weeks in a year. That means you will spend $5,200 per year on gasoline assuming you drive year around. If you divide $5,200 by twelve (12), that means you are spending $433.33 per month for gasoline.
You should be sure to list your monthly expenses as they are or as you expect them to be once your matter is concluded. You should be prepared to present evidence to corroborate the amount you claim for your monthly expenses. It is not uncommon for people’s expenses to change. If your expenses change after you file your financial affidavit, the Rules require you to file an amended financial affidavit so that all information is accurate prior to any hearing or trial.
Assets Section
The fourth component of a family law financial affidavit is the assets section. You must identify any significant asset and provide its fair market value. You should also identify the party who owns or has possession of each asset. It is important for you to list all assets including but not limited to real estate, cash on hand, bank accounts, business assets, retirement assets, significant personal property, jewelry, furniture, sporting goods and other valuable items.
You should list all items separately in the respective area and you should write an appropriate description for each item. For example, you should avoid listing “my husband’s truck” instead, you should write the year, make and model. i.e. 2023 Chevrolet Silverado 2500HD High Country. Make sure to list the fair market value for each item. If you are not sure of the fair market value, then you may use the internet to find similar items in your area in order to help you determine values. You may also hire an appraiser or valuation expert to help you determine the value of an asset. The fair market value at the time of filing the petition is the amount that you should list for the value of each item.
Liabilities Section
The fifth component of a family law financial affidavit is the liabilities section. You should list all of your liabilities in this section. Your liabilities include your the monthly payments you make towards your debt, i.e. your mortgage or auto loan balance. You should list the amount of your monthly mortgage payment under your monthly household expenses. However, you should list the amount of your mortgage balance under the liabilities section. Likewise, you should list the amount of your monthly auto payment under the monthly automobile expenses. You should state the total amount of your auto loan balance under the liabilities section of your family law financial affidavit. The amount of each liability at the time of filing the petition is the amount you should list in the liabilities section of your financial affidavit.
Contingent Assets/Liabilities
The sixth component of a family law financial affidavit is the contingent assets/liabilities section. It is not uncommon for this section to remain blank. Contingent assets or liabilities are not common and may be hard to quantify. Nonetheless, if you have any contingent assets or liabilities, you should list them in the last section of the family law financial affidavit.
What Should I do If My Income or Expenses Change?
It is not uncommon for one’s income and expenses to change in the course of a proceeding. If your income or expenses change or if you discover an inaccuracy on your financial affidavit, don’t worry. The Rules allow and require you to file an amended financial affidavit.
Will My Lawyer Help Me With My Family Law Financial Affidavit?
Absolutely! We will help you to file the appropriate financial affidavit. The first step in helping us file your family law financial affidavit is for you to complete the appropriate worksheet. We will not file your worksheet but we will use it for reference when completing your family law financial affidavit. Please take time to make sure you accurately list all income, deductions, expenses, assets and liabilities in your worksheet. Once you have completed the worksheet please forward it to us by electronic mail or through our secure client portal.
We will use the worksheet you submit to help us prepare a financial affidavit to file with the clerk. We will not file any financial affidavit without your review and approval. The law requires you to sign and notarize your financial affidavit before we can file it on your behalf.