By Anne Shale   |   October 9th, 2010

finan_aff.jpgThe Affidavit of Financial Disclosure (or a Financial Affidavit) is a very important document in domestic relations, especially in divorce matters.  If you are pursuing an agreed upon dissolution of marriage (instead of a divorce), the Financial Affidavits are required, but they are not nearly as important as in divorce actions.  In dissolutions, the Financial Affidavit establishes the required disclosure of all assets and liabilities which is the foundation for any dissolution. Also, in a dissolution, since the parties have everything settled between them, any issues regarding what Husband earns or what Wife earns are largely irrelevant because the parties have already determined which party will be paying child support and/or spousal support (alimony) and the amount thereof. The Court is not likely to interfere with those agreements.

In a divorce, which is an adversarial proceeding, one party may be requesting spousal support and/or child support.  In Montgomery County, Ohio, it is especially important to complete the Affidavit of Financial Disclosure because the Court relies upon that information when issuing its Temporary Order for Custody and Support.  Accordingly, if the Financial Affidavit reflects that both parties are still residing in the same home together, the Court will not typically issue an Order for Temporary Custody and/or Support; but generally directs the parties to continue to pay monthly expenses as they have done in the past.  If the parties are living separate and apart, the Court is likely to order spousal support to be paid by the financially-advantaged spouse as “monthly living expenses” to the other spouse.  Those expenses would include the following:

  • Rent or Mortgage Gas and Electric
  • Water and Sewage
  • Basic Telephone (excluding long distance)
  • Trash Collection
  • Other (which may include internet services, cable, or cell phone, etc.)

Frequent Problems Encountered:

  1. The party who is first to file for divorce provides an artificially high income figure for the other spouse.
  2. The party who is first to file provides an artificially high number for monthly living expenses (which triggers a high amount for spousal support in the Temporary Order).

These “problems” are the ones most likely to occur and usually lead to increased legal fees for the potential Obligor (Payor) as he/she must seek the assistance of the Court for a remedy of the “faulty” Temporary Order.  For example, I recently had a case wherein both parties were registered nurses and I represented the Husband. When Wife filed her Complaint for Divorce, she indicated on her Financial Affidavit that Husband had a gross income of $90,000 per year.  This was an artificially high income for Husband because both parties actually had incomes approximating $50,000 per year. But, based upon Wife’s Financial Affidavit, Husband was ordered to pay a higher than usual spousal support and child support amount. We then had to file a Motion for Oral Hearing to inform the Court of his true income and address the fact that the Temporary Order was not fair or equitable to Husband. An appropriate amount of support was then ordered.

Another recurring problem with Financial Affidavits is that one spouse may decide to temporarily live with his/her parents during the pendency of the divorce, but indicates anticipated or estimated monthly living expenses on his/her Financial Affidavit.  The Court may then order temporary spousal support to cover those expenses while he/she is actually living free of rent/mortgage and other living expenses during the pendency of the divorce action.  Again, if this occurs, it takes time and money to file a Motion for an Oral Hearing to bring these facts to the attention of the Court.

Tips In Using The Financial Affidavit To Your Advantage:

  1. If there have been incidents of domestic violence, there is a place to indicate that on the form. That fact can be VERY important, so do not neglect it!
  2. Likewise, if there is a pending bankruptcy proceeding or Juvenile Court proceeding, indicate that on the form. A pending bankruptcy action usually will require a Motion be filed in the Bankruptcy Court to allow the divorce case to move forward! If there is an ongoing bankruptcy or one anticipated, bring that issue to your attorney’s attention as soon as possible so that impact can be considered.
  3. Be sure that the correct addresses for the parties are listed, especially if they are no longer living together or if one of them intends to move from the home in the very near future.
  4. Do not forget to check the box if you are requesting a Temporary Order of Custody or Support.  The Court must be aware that your party is seeking an Order from the Court.
  5. Neglecting to ask for what your client wants/needs can be costly to your client.

Further Suggestions Which May Be In Your Best Interest:

  1. Always be forthright and honest about your gross income and monthly expenses as well as any information you provide on the Affidavit.  It will ultimately be detrimental to your best interest if there is any “fudging” or exaggeration.
  2. Always provide an estimated income amount for the other party so that the Court has at least an approximate amount for its determination of spousal support and/or child support for the Temporary Order. NEVER leave your spouse’s income line “blank” if he or she is working!

In conclusion, do not neglect the importance of properly completing the Affidavit of Financial Disclosure. It can be very important in any Domestic Relations matter (or in any Juvenile Court matter where child support is an issue). Be sure to discuss any issues or questions that you might have in properly completing this form with your lawyer. It is always prudent to submit a properly prepared Affidavit at the outset of the case; otherwise litigation to correct mistakes and/or omissions can be both unnecessary and costly.

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Anne ShaleAbout The Author: Anne Shale
Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.

The Importance of a “Correctly Completed” Affidavit of Financial Disclosure

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