In concept, a financial affidavit is a simple document. It is a sworn statement of your income, expenses, assets and liabilities. The form for the affidavit is prescribed by the Florida Supreme Court.
Both parties must file and serve a financial affidavit in a divorce case. If you are seeking support, you must serve it on your spouse (or his or her attorney) along with your notice of hearing on temporary support. Your spouse’s affidavit must be filed no later than 5:00 p.m two days (or seven days if provided by mail) before the hearing.
The standard interrogatories also require you to provide a financial affidavit along with the answers. If there is no temporary support hearing and no interrogatories are sent, both parties must file and serve their affidavits at least 10 days before the final hearing.
Despite the use of financial affidavits in almost every divorce case, no one knows exactly what must be reported. Income, assets and liabilities present minimal difficulty. Expenses are the problem. No rule states what expenses are to be reported; no case has ever said. And, for certain, lawyers don’t know. Fortunately, developments in the law and particularly the requirement that child support be established using guidelines (which rely solely upon income), expense are of little significance in the vast majority of cases.
Let me give you some ideas about what different expense might seem appropriate and then I’ll tell you why each of them is defective:
- Past history. If you reported your expenses for recent past history, say for six months or a year, those expenses would show what you and your spouse expended together; they will have little relevance to what you need as a separated individual.
- Future expenses. If you reported, instead, your guess of expense for the foreseeable future, you could not support the figures with any documentation, whatever; you could face a withering cross-examination on the affidavit.
- Interim expenses. If you used the expenses you had immediately after the separation, your figures would, among other problems, be significantly exaggerated, since every move or transition necessarily involves a lot of unusual expense. Although useful for a brief period, possibly two months, this is probably the least reliable method of doing the affidavit.
What does that leave us? It seems that the best affidavit is one that merges all three. It considers past history and projects expense for the foreseeable future, and reports interim expense as nonrecurring. The only alternative, a cumbersome but often necessary one, is to file several different affidavits as the circumstances require.
Supreme Court Forms
At the end of this appendix, you will find a copy of the short form of the prescribed Florida Supreme Court financial affidavit. (The long form differs only in requiring more details about assets and liabilities, most of which is irrelevant.) I’ve filled it in for a hypothetical wife employed at a local establishment in her neighborhood. Skipping expense for the time being, let’s look at the different aspects of the form.
Employment Information. There’s nothing complicated here. “Rates of pay” could cause some confusion. Since the affidavit is based on monthly income and expenses, some people think that the rate must be stated that way. It needn’t; if your income is based on an hourly rate, you should insert the hourly rate.
Income. The income section requires you to report your “current” income and has prompts for a variety of other possible income sources. This, is obviously to avoid the previously common excuse, “oh, gee, forgot that I get a $10,000 bonus every year.
This section is not without its loopholes. For example, is a Christmas bonus part of your current income in July, especially if there is no guarantee that there will be a bonus this year? After years of recommending that you put it down anyway, I believe now that you should make an objective evaluation of your chances of getting it. If you are certain that you will get it and can make a safe estimate of its amount, list it. If, however, you have only a 50-50 chance of getting it or the amount has fluctuated significantly, it would be unwise to put it down.
Overtime is another loophole. Some husbands develop “RAIDS” during a divorce. (RAIDS is “Recently Acquired Income Deficiency Syndrome”) One of the ways they get it is by refusing to work any overtime. Even if an average of 20 hours of overtime was available each week for the last 10 years, it always seems to disappear during divorces. And it seems like he’ll never have overtime again.
Sometimes, attorneys inadvertently encourage that type of conduct. I’d like to believe that judges see through it and impute the overtime income in the absence of compelling evidence that work conditions have truly changed. I think it has to be reported and that you shouldn’t change your overtime work pattern unnecessarily. (It sometimes can’t be avoided because separations often impose schedule changes on fathers because of contact with the children).
Assets. The affidavit requires you to report all assets, even those only in your husband’s name, and split the value of marital assets. Because marital property will be presumptively divided equally, this presents an accurate picture of how division will occur.
Valuation can be difficult at times. For example, the house or vacant land probably hasn’t been appraised in years. The cars may be too old to appear in the “blue book.” A privately owned company is of very disputable worth. Honest guesses, however wrong they may be, they rarely cause any problems. Disputes can be easily resolved through appraisals.
Assets are frequently overlooked, often honestly. But an overlooked asset will make you look worse than any other error on your affidavit. I’ll tell you later how to minimize the risk of doing that.
Liabilities. Debts are just as frequently overlooked. Such omissions almost never make you look bad, but they can hurt your case.
Everyone wants to load up on liabilities and be weak in assets; think of it as the opposite of a financial statement with your bank. (That, incidentally, is why bank financial statements are the best source of impeaching information; no one ever underestimates assets, or overestimates liabilities, on a financing statement.)
Gifts/loans from parents probably present the biggest problem in this area. Was the $10,000 from Dad a loan or was it a gift? Often there is no documentation and the parties honestly remember event differently. If your parents provided you with the money, you would have accepted it, like most adults, with the attitude that you would repay the money as soon as you could. Your spouse, on the other hand, would think that your parents owed it to you. Even if you had never repaid a dime in the last 15 years, you would retain your conscientious intention to pay it back. Hot disputes arise from such unwritten transactions.
Expenses. You need help to do the expenses well. But I think it is unwise to work with your attorney on the initial effort. Remember, you’re paying your lawyer between $3.00 and $5.00 a minute (yes, a minute!), and he or she probably won’t be as good at this type of work as your accountant or, even, you and your best friend.
We have already decided that your expense listing should be based on your records, your foreseeable future needs and the immediate expenses related to the divorce. That decided, the task is easier. (Let me remind you again, however, to follow your attorney’s directions. If he or she instructs you to approach your financial affidavit differently than I suggest, follow those directions. The only exception; if your lawyer should instruct you to use the affidavit to mislead the court, get a new lawyer. You shouldn’t be paying anyone for that kind of advice.)
Steps To The World’s Best Financial Affidavit
The Supreme Court tells us what form to use; we have no choice about that. It’s what we do with that form that makes it something special. The world’s best financial affidavit is simply one that is completely honest, accurate and defensible. Let’s go over the affidavit step by step.
Employment Information. Just make sure the information is accurate. Confirm the exact name of your employer and verify the address. If you have any doubts, ask your superior what your exact job title is.
Look on your latest paycheck for your rate of pay. If it doesn’t appear there, call bookkeeping and get it. Make sure you know whether you are paid every two weeks or every half month; they are not the same since, over the course of a year, every month contains four and one-third weeks. That might not seem like a big difference, but consider that if you earn $500 every half month, you make $83.33 less each month than someone earning $500 every two weeks.
Income. Your base pay is usually pretty easy to determine. For some people, it isn’t however. For example, suppose you work in construction; weather can cause your weekly income to vary. Or suppose you are a sales representative and you get a draw against commissions.
When your base pay is not certain, you must rely on your income records. Get your pay stubs for the last six months; use a whole year’s records if your income varies according to the season. If you don’t have your pay stubs, ask bookkeeping at your company for help. Average your gross income (excluding overtime and bonuses) on a monthly basis. Adjust that, if necessary, for any unusual events that might have occurred during that period. Take the following example:
Gary Lubacker, a carpenter, loses a lot of work because of rain days during the summer. His current rate of pay is $18.00 per hour. During the last year, he has averaged $650 per week income; however, most of that was before he received a raise from $15.00 per hour. To come up with a legitimate figure, all he has to do is calculate the average number of hours he worked during the last year, regardless of his pay rate, and calculate his current income by multiplying the average hours by the current hourly rate. His monthly income is four and one-third times his weekly average.
Now go down the list of other possible income sources on the affidavit form. That list should remind you of any income you might have forgotten. Just to make sure, however, go to your tax return for the last couple of years and make sure that you haven’t overlooked anything.
Your next task is to list the deductions. This may involve some calculations. For example, you can’t just copy the withholding deduction from your paycheck. The form requires that you “normalize” it to your actual status. Does that mean that you treat yourself as (a) married, (b) unmarried, (c) with dependency exemption for your spouse, or (f) without exemption for your spouse? No one has bothered to explain what the Supreme Court meant.
Since the idea is to put everyone on the same basis for comparison purposes, the only logical answers for the wife (assuming that she has the children during the divorce) are (b) unmarried, (c) with exemptions for the children, and (f) without exemption for the spouse. For the husband, the answers should be (b) unmarried (d) without dependency deductions for the children, and (f) without exemption for the spouse. Any other answers would make the court compare cherries with coconuts. Actual available funds for each must take into consideration the taxation that will exist after the divorce; current tax law gives the exemptions to the custodial parent unless the custodial parent voluntarily consents to his or her spouse taking it or the court awards to the other party. (Of course, if the husband is seriously contesting custody, he should also include the children as dependents.) in sum, my advice is for both parties to normalize to the actual status as it will be, or they hope it will be, after the divorce.
FICA and Medicare deductions need to be normalized, too. As you may know, deductions are made at 7.65% (6.2% for Social Security and 1.4% for Medicare) of your gross income up to $87,000. The deductions then stop. You must normalize them if you make more than $87,000; you do it by averaging the $6,655.50 (7.65% times $87,000) over the whole year. (You should get $554.63 per month.) if you make less than $87,000, any paycheck should give you the right FICA deduction.
Most people have their insurance deducted from their paycheck. If you do, just take the amount from your pay stub. Confirm that it is deducted from very paycheck and not, say, once a month or very other paycheck.
Loans from you company’s credit union will usually be deducted from your paycheck. Don’t forget to list the deductions in the proper place. Loans deducted from the paycheck do not belong here. Even though they may actually be paid by a paycheck deduction, the loan payments should be listed among expenses as payments on bills. In my opinion, the proper place to list them is with the bills and not with the deductions from the paycheck. Your attorney may disagree; if so, follow your attorney’s advice.
When you complete your deductions, the amount left over should be the same as you take home each month if you make an adjustment for normalizing the withholding and FICA. Check it to make sure. If you don’t come out the same, look for a mistake somewhere.
Expenses. Now we come to the hard part. We can make it a little easier by breaking it down into parts. The parts are going to be (1) documented history, (2) adjustments for future needs and (3) temporary expenses.
The documented history is made from two sources, income records and your checkbook. Let’s deal with the checkbook first. You need to make a “spreadsheet” to start off. A spreadsheet is a large sheet of paper, usually at least 25 inches wide, with rules and vertical columns; you can buy them at any stationery store. You should tape them together in pairs, side by side, because you are going to need a lot of columns. You then write, across the top of the columns, the expense categories listed on the financial affidavit, one to each column. On the left, from top to bottom, list every check you have written for the last six months (or, preferably, the last year) and its amount.
Now comes the easy part. Decide, for every check, which expense category it fits. Sometimes, a check will cover more than one type of expense (for example, if you went to a department store and wrote one check for both a gift and for clothing for yourself). That’s no problem; just put the appropriate amounts in each column. Make sure that the total of the separate columns for each line is the same as the check.
The most difficult check to spread is the one you used your credit card payment. You really need the credit card statement to break that one down. If you don’t have it, make your best guess. With credit card payment, you also have to make a decision about whether a particular payment belongs in your clothing expenses or in your payments on bills. I’ll give you my opinion about how to handle that a little further on.
After you have all the checks spread, add up all the checks and all the columns. The sum of all the columns must equal the total of all checks. If it doesn’t, you made a mistake somewhere. Once it balances, you have one more step. You must compare the check total with your total disposable income. They won’t match unless every interest payment, etc., goes through your checking account. That is rare. Most of us spend a significant amount of cash. Put down the total of the unaccounted-for income right under the checks as if it were another check; call it “cash ($xxx.xx).” Now spread the cash across the expense columns as best as you can. This won’t always be easy, and the result will be a guesstimate at best. Once you’ve done that, check yourself again by making sure the columns all add up to the total cash listed on the left.
Now you must make some adjustments. First, you must estimate how much each expense would have been different if your spouse had not been living with you. (If you are the noncustodial parent, reduce the amount attributable to the children also.) For example, food is the easiest to adjust: if it was just you and your spouse before the divorce, you might reasonably estimate that your food expense alone would be 60% to 65% of the expense for both of you. Throw out your spouse’s clothing expenses and such entirely. Look at every item and eliminate or adjust each one where needed.
Another adjustment must be made for nonrecurring expenses. If your grandmother died last year and you had to travel to Maine for the funeral, that is not an expense that you should include for the future; take it out.
So far you should have no expense listed for credit card payments; you spread each payment to the appropriate column for which the charge was made.
If your health and/or life insurance is deducted from your pay check and you listed it as a deduction in the income section, you shouldn’t have the listed as an expense. If you listed the insurance again, you would be taking the expense twice. You might indicate on that line “deducted from paycheck” so that the item isn’t overlooked.
Now you need to pull out your crystal ball and estimate what adjustments are necessary to make the expense realistic for the future. This involves some hindsight. For example, if you spent $35 per month for clothes last year because you couldn’t afford more, add an amount that would have allowed you to reasonably meet your needs. If $75 per month would have allowed you to buy the clothes that you reasonably needed, change the $35 to $75 but make notes about why you feel you need the extra money.
Think of other ways that your spouse’s absence will affect your expenses. You may need a whole lot less aspirin; on the other hand, you will have to pay for a plumber the next time your sink leaks. Try to think of every item your spouse cost you and everything your spouse saved you. Make notes so that you know where the figures came from. Now you have to do something about credit cards. As I said, you can’t look back at your actual monthly payments and just put them down. Instead, for each card on which you may reasonably be liable to pay, you need to take the outstanding balance for each card and estimate what monthly payment will eliminate the balance within a reasonable time, say a year or 18 months, if you make no further charges. Make sure you include interest. And make sure you understand how and why you did that: you may have to explain it in deposition or in court. You are not double-dipping: you are servicing a debt at the same time that you must but clothes, etc.
Finally, make estimates of transitional expense. These are expenses that you will have for the next several months as a result of the separation/divorce but won’t have when the divorce is over. List your attorney’s fee and be realistic. Either put these expenses in a separate category (“transitional expenses”) or list them separately in the appropriate categories with an asterisk and explain them at the bottom of the page.
Let me remind you that your itemization is only as good as your ability to defend it. Make good notes and keep them in a neat manner so that you will be able to understand them when you need to refer to them.
Assets. Make a list of your major assets first. Put down your house, your cars, bank accounts, stocks, etc. Then, start putting down every little item you can think of. Your jewelry (item by item), your furniture (as a whole), any collection you might have, any debt owed to you. Put down your pension and any profit-sharing interest you may have. Do it for yourself and your spouse so that you have everything on paper.
Next, pull out tax returns for the last few years and see if you listed all of your income from stocks, bonds or bank accounts. Check any bank financing statement that you filled out during more peaceful times.
Then sit down with a friend and ask him or her to start naming things your friend thinks you own. You don’t have to show your list; you’ll be surprised how often a friend will remember something you’ve forgotten. If you’re in the house, walk through it a few times, looking in every cabinet and closets for things of significant value you may have forgotten. Don’t forget the pictures on the wall; some of them may be valuable. If you have a safe deposit box, go to the bank and look through it.
Finally, look through your checkbook to see if there are any relatively large checks for big items.
You will have some trouble with valuation. We all tend to overvalue our processions and that’s generally not to your advantage in a divorce. The criterion not what an article is worth to you; rather you must assign the price that an arm’s length sale would bring. An “arms-length” sale is one between a willing seller and a willing buyer, neither of whom is under any coercion to sell or buy.
You may love your sofa, but the average person on the street is unlikely to pay more that $75 to $100 for it, even if you paid $1,200 to buy it only a year ago. Antiques are a different matter; they will tend to grow in value. Even so, be realistic about a piece’s value. Where the assets justify it, you can obtain a personal property appraisal. Clothing has almost no value. Few people could sell their whole wardrobe for more than $250. Real estate values usually are estimated at the time of the first financial affidavit. Often, in the course of litigation, especially if the parties disagree on valuation, an appraisal will be done. Stocks and bonds have readily determinable values. Don’t guess; go to your last statement or call your broker. Many people own time-shares in a condominium. Basically, most of them are worthless. If you think that, I’m wrong, call up the company that’s still marketing in the same building (they never seem to sellout completely) and ask how much they will offer to buy your seek back. If they refuse (and they will), just put down a nominal amount on your affidavit, say $500 for a $3,000 share or $1,000 for a $6,000 share. If you really want the time-share out of the divorce, you don’t have to be so cavalier; out down a higher figure. No one will ever criticize you for overvaluing your property. Your spouse may gladly offer it to you in exchange for something he or she wants.
When you enter the property on the affidavit, you must apportion the value between you and your spouse. That really isn’t difficult. If the property is marital, you must show it as each of you owning half. If the property was acquired during the marriage but there isn’t any title it’s half and half.
Liabilities. Debts are nothing more than negatives assets. You find them in much the same places: income tax returns, checkbooks, etc. You can start by listing the obvious ones: house mortgage, car loan, credit card balances, etc. Don’t forget to list any debt you owe your attorney. List any loans you still owe to relatives.
Liabilities rarely present problems. Be sure, however, that you check any promissory notes carefully.
Often, a note/mortgage on property owned by one party was signed by both parties. If so, list the debt even if you don’t want, or expect to receive, the property. One tricky aspect of this is the fact that while you probably only have rights to half of a joint asset, you are 100% liable for the joint obligation on it. Some attorneys fudge on their client’s net worth, not completely without justification, by giving their client only half of a property’s value in the assets listing but all of the debt in the liabilities section. It may be technically accurate, but it is unquestionably misleading.
(A less common, and totally unjustified, trick is reporting only the equity in an asset in the assets list and the debts in the liabilities. Since many judges look at the debts and subtract them from the assets, the liability is deducted twice.)
Finishing Touches. At least a few days before the affidavit must be filed, bring your efforts to your attorney’s legal assistant or secretary to go over with you. His or her experience can be great help to you. When both of you are satisfied, your attorney will prepare it in “final” form. Before you sign it, however, your attorney will probably go over it one more time. Your attorney will be looking for anything that looks out of line and will ask you to explain any such items. Do not, however, depend on your lawyer to catch errors. Often, numbers that look normal to him or her will be wrong to you: abnormal numbers, ones that catch your lawyer’s eye, may be correct. Ultimately, you will be on your own with the affidavit and your lawyer can only try to make sure that you can defend it.
Tricks to Avoid. Some attorneys like to pad financial affidavits. Let me tell you how they do it. (And then, I will tell you not to be part of it.) The first way is to insert “reserves.” You see it in various ways: “reserves for house repairs,” “reserves for auto repairs” “reserves for vacations.” There is a certain all to such listings; they seem to make sense, but they don’t.
You should have already listed your historical and foreseeable repair and vacation expenses. Carried to its logical extreme, everyone could list $3,100 per month as “reserve for a new house” since the average house costs $185,000 and Americans move every five years on an average. It is nothing short of deceit.
The second trick is to break down listings into smaller and smaller parts. The more categories you list, with a reasonable amount for each, the larger will be your needs. To take a ridiculous example, a meal for four might cost $6.00 to put on the table; using this ploy, however, you could show a need to over $13.00; salad per person, $0.45; portion of meat, $1.20; vegetable, $0.40; potato, $0.15; butter, $0.11; salt & pepper, $0.02; beverage, $0.25; dessert, $0.48; beverage with dessert, $0.18; napkin, $0.02. No individual item is clearly excessive but, as a whole, the cost of the meal is way out of line. I think you get the idea: an overly detailed affidavit will be misleading.
Finally, an attorney might tell a client to puff each item by a certain amount, say 20%. If the electricity is usually $78 and you listed $93, the other side probably would have trouble picking that up less he or she used an accountant. Likewise, food expenses inflated from $325 per month to $380 would not necessarily show up. The bottom line could, however, inflate monthly needs from $2,500 to $3,000.
There are other tricks also. But just these three, an attorney could double actual needs without any easy way to disprove it, short of hiring an accountant to go through the documentation of each item on the affidavit. That’s not practical in 90% of all cases.
If your lawyer tries any of these tricks or otherwise suggests that misrepresent your fiancés, get a new lawyer. A lawyer who would defraud the court will certainly defraud you. Why would such a lawyer’s bill to you be any more honest than the affidavit?
When you receive a copy of your spouse’s financial affidavit, look it over carefully. See if any of these tricks have been used to inflate the expenses. Scrutinize every item carefully and compare the amounts with yours. You may come up with discrepancies that can help your attorney prepare for deposition or final hearing.
Take care in working up your financial affidavit. Give yourself the benefit of every reasonable doubt, but don’t purposely exaggerate any of it. Get help whenever you can, but don’t let someone else, even your attorney, do the affidavit for you. You must defend it and you must understand it.
The rules are simple: (1) be as honest as you can be; (2) be reasonable and fair in stating your needs; (3) keep good, honest and usable notes for each item; and of your reasonable needs if the money were available, taking into consideration your standard of living in the marriage.
Your careful preparation of your affidavit will help you in defending your figures. It will also put you in a very good position to assist your attorney in seeing through your spouse’s affidavit.