Shortsighted Financial Affidavits: Depreciating the Standard of Living

Financial affidavits have long been part of the divorce court’s modus operandi for temporary relief hearings.  More recently they have evolved into comprehensive financial disclosures. Failing to scrutinize your own financial affidavit might unwittingly offer up your opponent’s most persuasive exhibit at trial.

All too often, financial affidavits are hastily prepared (e.g. for a temporary support hearing) without much foresight about the more significant issues in the case, such as maintenance in a long-term marriage.  Often after a separation, one spouse must find temporary housing that may be below the standard of living during the marriage (e.g., moving from a single-family home into an apartment).  The monied spouse may also cut off access to finances, further limiting the ability to pay temporary expenses.  Then those temporary, separate housing expenses are necessarily listed on the initial financial affidavit.  Later, however, those temporary expenses tend to set the bounds of that party’s financial needs as a determining factor for maintenance, even though they are incommensurate with the standard of living during the marriage.  Such is the backlash of shortsighted financial affidavits.

What can you do differently to overcome the backlash of shortsighted financial affidavits?

Obviously, it is important that the financial affidavit is truthful and reliable. This requires that separate, temporary expenses are listed, even if they are remarkably different from what had been the joint expenses during the marriage.  Anticipating the issue and being proactive is the key to overcoming shortsighted financial affidavits.

The first step is to follow clear and specific instructions to prepare the affidavit.  For example, are values actual or estimated? Current or historically averaged? Joint or separate?  Spend time with your lawyer to prepare the affidavit and scrutinize the numbers – there should be no guessing or duplication.  Averages or good faith estimates might be appropriate so long as you can back them up with supporting records.  Debts and expenses should be clearly identified as either joint or individual as well as who actually pays them.  Finally, make sure the affidavit is internally consistent.

If the initial affidavit is reliable, then subsequent affidavits will likely be presumed reliable too.  The second step is to supplement (update) the financial affidavit as often as necessary.  Most court rules require updated affidavits whenever a financial issue is to be decided.  Pay attention to the updated affidavit and be prepared to explain the basis of any changes.  The most important updates should be made prior to a pretrial conference or trial because those are the affidavits the court will rely on most heavily when making a decision.  These updated affidavits should not only include updated numbers, but may also be supplemented with comparisons and projections. Each supplemental affidavit should be appropriately labeled.  For example, an affidavit showing temporary expenses could be compared with the same expenses historically incurred during the marriage and projections of reasonably imminent expenses.  This way the affidavits demonstrate your current and future needs in perspective with the standard of living during the marriage.

Finally, the financial affidavit cannot stand alone to establish the standard of living during the marriage; diligent discovery is required, too.  Good trial work requires more than merely admitting several years of tax returns, bank statements, and credit card statements under the assumption the judge will be able to decipher the standard of living during the marriage.  It is important to reconcile all that information into an organized summary, and key trends for the judge. This evidence should corroborate your financial affidavit.

In conclusion, avoiding the backlash of shortsighted financial affidavits requires a proactive approach. Ultimately, the affidavit should tie in with the theme of your case, not distract from it. With foresight, you can turn the court-mandated financial affidavit into an opportunity to offer the judge concise evidence that truly correlates your financial needs with the standard of living during the marriage.