Florida Family Law: A Guide to the Process
Florida family law rules of procedure provide for the systematic and orderly presentation of issues for resolution in the divorce context, either through settlement or litigation. In other words, family law rules of procedure govern how issues unfold when a married couple decides to file a petition for divorce. The Florida family law rules of procedure are rules specifically drafted to compliment The Florida Bar rules of procedure, which are general rules provided for all areas of Florida Law.
In a nutshell, when you decide to file a petition for divorce (divorce is know in family law as "dissolution of marriage") the rules of procedure provide for various processes that must unfold before a Judge or General Magistrate can render a decision on your matter. Said differently, the Florida family law rules of procedure provide the roadmap that will be followed in obtaining the relief requested.
For example, one of the first steps involves the filing of a financial disclosure called a "financial affidavit." A financial affidavit is a document that provides as much information about your finances as possible, including income, expenses, assets, debts, among other things. The financial affidavit also provides for the basic information of the other party (i.e . spouse) to the extent you have such information available. It is required by law, under the Florida family law rules of procedure, that a financial affidavit be filed in every divorce action. The financial affidavit, and the information contained therein, is important for several reasons, including helping you and your spouse understand what assets and liabilities exist between both of you and what assets and liabilities you each have individually.
The financial affidavit is one of the many steps contemplated under the Florida family law rules of procedure in every divorce case. The family law rules of procedure also provide for the mandatory disclosure process, which requires the exchange of information between parties prior to the second step in the process. Then comes mediation, followed by a scheduling conference, pretrial conference, and finally, to trial. There are many other steps in the Florida family law process, but this just gives you an idea of what is involved.
The bottom line: you should investigate the requirements of the Florida family law rules of procedure to understand the processes that will be required, whether it is a contested or uncontested divorce action, and the means available to help you if you get bogged down or encounter problems during the process.
Financial Affidavit: What is It?
Financial affidavits are statutory forms, which typically take the form of financial affidavits, that require litigants to disclose specific information about their income and expenses during a family law case. With respect to alimony, i.e., spousal support, and parental responsibility issues: timesharing and child support, depending on the financial circumstances of the parties involved, the financial affidavit will effectively set the parameters for alimony, timesharing and child support. Thus, the importance of the financial affidavit cannot be understated as it is one of the most important documents in your family law proceeding.
A litigant is required by law to file a financial affidavit in most family law cases. If a party fails to file a financial affidavit, the court may suspend child support and/or award an attorney fee against the non-compliant party. Any continuance of hearings, ultimately, would be at the expense of the litigant who failed to file a financial affidavit with the court.
The financial affidavit is a heavily prosecutor form that allows you only to provide very broad categories of detail. For example, in the case of a monthly marital expense, if you spent $2,300 per month on monthly lease payments or your mortgage, then you would simply write the number of your lease payment/mortgage payment and the monthly amount of $2,300, no explanation necessary.
Different Types of Financial Affidavits in Florida
There are two types of Financial Affidavits for use in Florida family law cases:
Short Form: The Short Form Financial Affidavit is a more limited financial disclosure document that can be used when neither party’s gross income is over $50,000.00 per year.
Long Form: The Long Form Financial Affidavit is used in all contested cases in which the parties gross annual income is both at or above $50,000.00 per year.
If there are three minor children involved in the case (discussed more fully in Section 1.4.4), the income threshold amount is $80,000.00.
Any and all discrepancies between the figures provided by both parties’ Financial Affidavits will likely require a court hearing to resolve. For this reason, it is important to be both truthful and thorough when completing the Financial Affidavit.
How to Complete a Florida Financial Affidavit
In Florida, married parties are required to provide their spouse with a Financial Affidavit, the form used throughout all cases in the State of Florida to help both parties to help determine their true total financial picture, with the other spouse. A Family Law Court Judge uses this information to determine an equitable distribution of marital assets, calculate income available to apply to child support and alimony, determine amounts and times for spousal or child support payments, and assist with financial disclosures throughout a contested Divorce Proceeding.
Three main rules govern the proper completion of these forms, the requirements of the cases (and the procedures), and the severability of the information required by the form.
- The case laws for proper completion of a financial affidavit that most people refer to is as follows: Benson v. McMurray, 714 F.2d 29(fla. 5th DCA 1983); Goldman v. Goldman, 486 So.2d 1289 (Fla. 3rd DCA 1986); Ruiz v. Ruiz, 665 So.2d 261 (Fla. 3rd DCA 1995); Martinez v. Martinez, 641 So.2d 880 (Fla. 3rd DCA 1994); Zamora v. Zamora, 733 So.2d 1133 (Fla. 3rd DCA 1999).
- The rules of Family Law Procedure Rule 12.285 allow for a very specific mandatory form for the financial affidavit, and the supporting information, which is to be completed as follows: The value of leases, receivables, and goodwill shall not be included in calculating net worth. See Martinez v. Martinez 641 So.2d 880 (Fla. 3rd DCA 1994).
- The information required to be provided for each of the assets and liabilities in the forms include the following: For example, the question "how long have you owned the residence?" requires a very specific answer. If you acquired the property from a family member, it must be disclosed. If you are not the named person, even though someone else "claims" the property as their own, then it must be disclosed.
A person must be very careful when completing the financial affidavit. There are very strict and specific rules for the completion of these forms. There are many people who will help you answer these questions, and even do these forms for you without providing this information. Doing these forms in a "general" manner is a risk. Also, just because your attorney asks you for a copy of something like your tax return or social security number, does not protect you. Your lawyer needs you to be able to produce this information to the court as well.
Implications of Errors on a Financial Affidavit
The legal implications of an inaccurate or incomplete financial affidavit could be dire. In particular, an otherwise favored outcome may actually be worse by reason of one party’s faulty financial disclosure.
Consider the following example. Daddy in a child support or support alimony context makes $150,000 per year and has $2,000 per month in "extra" money left over after paying his support obligation. However, Daddy materially understates his income. He says he only makes $125,000 annually. In reality, he takes that extra $2,000 per month, and sends $1,000 per month to his new wife. He disguises this history of payments by making transfers to other friends and family members, as well as into new investments, with the original source meaningfully hidden. After careful investigation, Mommy’s lawyer proves the true story. But everyone agrees that Daddy had a right to get rid of his excess cash by sending it to a new spouse, or transferring it to his children from a prior marriage. So, the fact that Daddy is guilty of intentional misrepresentation will have zero impact on an appeal of a final judgment establishing that his income was higher than his sworn statement suggests. Whether $2,000 a month goes to new stepmom or back to an ex-wife is immaterial.
In the context of equitable distribution, the odds that an erroneous financial affidavit can actually make things worse for the offending party are even higher. The Court may ask a litigant to argue why a meaningful advantage should not be given to a party who presented incomplete, misleading, or false disclosures. A Judge may cite a party’s conduct as a basis for ordering net worth distributions of assets . Or the Court may deem a wholly non-economic controversy to be grounds to affirmatively punish misconduct through such means as disproportionate distributions, negative inferences for false disclosure, or even insolvency of a marital estate.
The nature of these negative consequences turns significantly on the facts, circumstances and psychology of each case. Take the example of a Doctor who appears to be under-reporting support income. While it is true that the Doctor has direct control of some accounts, and therefore arguably has the right to obtain or conceal financial data for support purposes, the reputation of the local practice, and whether he will have an ongoing clientele is in play. Failing to disclose the extent of practice income – no matter how implausible or self-serving the cover story may be – could ruin an otherwise sterling livelihood. Sometimes it makes sense to call into question the motivations of a wealthy individual to verifiably hide material income. At other times, the family law bar and bench should accept the disclosure as good faith compliance, even if there could have been more complete transparency.
Thus, the dissolution of marriage setting is unique among other civil cases. The stakes – both economic and emotional – are high. Important property rights and parental liberties are on the line. Condemnation through unfavorable findings about a litigant’s character or credibility may yield long-term access and financial impacts for years following the resolution of the controversy. This total context provides a unique setting in which serious consequences come about through otherwise routine motions and court procedures.
Why You Need a Lawyer
Understanding Florida Family Law: The Financial Affidavit Process
Based on the complex nature of financial affidavits, it is often important to retain an attorney that can help properly navigate the process. For example, the attorney can help ensure that the applicant or filer includes all relevant figures and does not omit important details that could later come back to haunt him or her. Again, in Florida family law proceedings, mistakes on financial affidavits can be very costly.
Tips for Filling Out a Financial Affidavit
When the time comes to prepare a financial affidavit, the first thing I recommend is to get as organized as possible. While it can be temping to grab your bank statements for the last few months and just list basic income and expenses, having an accurate net worth statement is just as important as, and critical to the process, as completing the income and expense portion of the financial affidavit. With that in mind, getting organized is crucial. The best way to start is to make a list of every bank account, investment account, retirement account, brokerage account, loan, mortgage, etc. you have. Chances are this will run to several pages. On that list, note the name of the institution, the approximate balance and approximately how much you add to the accounts each month. If you are generous with your money, or have given cash gifts to family members, now is also the time to note them on your list. Next, if you have any income from a business, create a list of that income. Get into the habit of regularly deposit funds directly into an account. This will provide you with a better accurate reflection of your income since the cash isn’t getting co-mingled with personal funds and is easier to trace. There are also ways to separate funds even if they are co-mingled. The next step is to get gather all of the documents associated with the list you have created. You can do this on your own, but I recommend using an attorney or financial professional for the most accuracy. Not only is there less chance for error, but often times they have software that can help you. Finally, once they are gathered, scan them and upload them into a cloud based storage account so that you can always find the information you need. You have to remember your financial affidavit is a sworn statement both parties file with the court in financial cases. It is part of the litigation process and substantiate what statements you have made in it. To say the least, courts take them very seriously. Any omissions can be viewed by the court as fraudulent and can result in unfavorable rulings. If you are unsure about how to fill it out, I recommend hiring an accountant or attorney who specializes in financial issues to help you. They can help with all of the above.
Conclusion on Financial Affidavits
This article has discussed the Financial Affidavit process in Florida family law matters, including the information required on the Financial Affidavit form, the exchange of Financial Affidavits between the parties, and the process of obtaining a Stipulated Financial Affidavit for use in an action before the Court. With this understanding, it cannot be stated enough that Financial Affidavits must be completed with accuracy and be truthful in all regards. A failure to do so , either through a miscalculation or purposeful misrepresentation of your true financial position, can have grave consequences in your Family Law matter, as well as in any future legal matters occurring in the future. Because of these serious implications, you should not treat your Financial Affidavit as something that is simply filed with the Court. Legal Advice is imperative in order to protect your rights and your future.
