FLORIDA LAW requires parties to a divorce action to disclose to each other complete and accurate financial information. This is called “Mandatory Disclosure,” mandatory being the operative word. Disclosing your finances is not optional; it is a “must do.”
Not only is it mandatory to disclose all your financial information, each party must actually swear the information they are filing is complete and accurate to the best of their knowledge. This is the “affidavit” part of the Family Law Financial Affidavit, and parties not in compliance with this requirement may be sanctioned by the Court.
So why are divorcing couples required to each file financial affidavits when, presumably, they’ve been living together and both have knowledge of their finances? Well, because there are at least two sides to every story. For example, what one party may consider to be a non-marital asset, the other party may consider to be a martial asset, subject to division. Or it may be that one party only wants to report their base pay and not the overtime they typically receive, whereas it would be to the advantage of the other party if all income were to be disclosed.
The purpose of putting all the financial cards on the table is so that the parties, their attorneys and the Court will have the best information available on which to base decisions about distribution of property between the parties, alimony and child support.
Taking a look at the information that must be provided, here are some of the dos and don’ts of each (The information provided herein is not comprehensive. Please see the Family Law Financial Affidavit (Long Form) and associated instructions for complete requirements. www.flcourts.org):
Do: Gather all the income information you need before you start filling out your paperwork. You will be required to provide copies of proof of income anyway, so the best way to ensure the accuracy of your affidavit is to work off your records. (This likely will include tax returns, W-2s, 1099s, pay stubs at a minimum).
Do: Calculate your income by the month.
Do: Use the chart provided by the “Instructions for Family Law Rules of Procedure Form 12.902(c), Family Law Financial Affidavit (Long Form) to help you accurately calculate your monthly income.
Do: Include income from all sources, including any side jobs or part-time jobs, businesses, disability, rental income, royalties, unemployment, etc.
Don’t: Calculate your monthly income by adding up your weekly pay. The most accurate way to calculate your monthly income when you get paid weekly is to take the weekly amount, multiply it by 52 (since there are 52 weeks in a year), and then divide that number by 12 (the number of months in a year). If you are paid every other week, then you’ll need to multiply that number by 26, and then divide by 12.
Don’t: Fail to report overtime if you consistently work overtime. Your pay stubs must back up your affidavit.
Don’t: Think you can get away with “suddenly” making a lot less than you have made through the course of the marriage. Most family law attorneys and judges have seen it all. It is doubtful you will be the one to finally fool them. The Court does have the power to impute income if the Court determines either of the parties is deliberately underreporting.
Do: Think carefully about your expenses and make a determination based on past expenses (when the two parties were still living together), current expenses (which may include some transitional expenses, like the costs of moving), and anticipated future expenses.
Do: Gather up all the back-up data you can, like credit card statements, bank statements, receipts and copies of bills. Refer to the Family Law Financial Affidavit instructions for a more comprehensive list.
Don’t: Overestimate your expenses. This is a biggie. If you have never spent $1,000 a month on vacations and travel, don’t put it in your “expenses” list because you “plan to start traveling more.” Accurate expense reporting is probably one of the most challenging aspects of the financial affidavit for a couple of reasons: 1) most people aren’t that good a keeping track of how much they spend each day, week, month or year and tend to forget about a lot of expenses; and 2) it’s hard to know if you should be reporting past expenses, current expenses or anticipated future expenses (which may not have supporting data).
Don’t: Think you should beef up the expenses section because otherwise you might not demonstrate enough “need” for alimony. If you show monthly expenses of $7,500 dollars and total income for the two of you was only $6,000 a month, the Court is going to question where you got the money for the shortfall.
Do: List all your assets, like the marital home, rental property you own, land, your cars, etc.
Do: Provide an accurate description of your assets. In other words, don’t just write “car.” Write “2009 Nissan Altima.” To get accurate values on cars, check outwww.kkb.com. For accurate values on property, you can Google some of the real estate sites, or get a Realtor to provide some comps, or get a copy of the tax appraisal (which likely will be a bit lower than the market value, but it is a starting point).
Don’t: Forget to include non-marital assets—or what you consider to be non-marital assets. Most likely, if you think the asset is non-marital because you owned it before the marriage, the other party will consider it marital, perhaps arguing you co-mingled the asset with marital funds (like depositing rent checks from rental property you own into a joint bank account).
Do: Get clear on all your liabilities and gather the paperwork to back them up. For example, the family home may be subject to a mortgage. The market value of the family home will be listed in the assets section, but the mortgage amount will be listed in the liabilities section. Same thing with your cars, boats, motorcycles or other vehicles. The item itself is an asset, but what you owe on it is a liability.
Do: Understand the difference between a liability and an expense. Whatever you pay consistently is an expense. For instance, your power bill is an expense you pay every month, so is your car insurance or renter’s insurance. However, there is no ongoingliability attached to these expenses like there would be with your car. Your car is an asset, the total amount you owe on your car is a liability, and the monthly amount you pay on your car is an expense. In the case of your car, therefore, you would include information about it in all three sections, but in the case of your utility bill, you would just include it in the expense section.
Don’t: Forget about your credit cards or other unsecured debt. If you are paying your credit card regularly, list the amount you are paying in the expense section. If you owe it but you are not paying it, you may not want to list it in the expense section. However, if you owe it, regardless of whether you are paying it or now, you will need to list it in the liabilities section.
These dos and don’ts just scrape the service of the mandatory financial affidavit. There are many other considerations, like deductions, contingent assets and liabilities and calculating your net worth. The most important “do” of all is to take the process seriously and spend the necessary time up front collecting all the required information and accurately completing the form. In cases where both parties cooperate in filing their financial information, the rest of the process progresses much more smoothly.
To discuss the particular facts of your case, and for help with working through your financial affidavit, please contact our office to schedule an appointment with Sandy Ambrose. Ms. Ambrose is a Martindale Hubbell AV-rated family law attorney with almost three decades experience in family law matters.