Tips to Help You Prepare a Financial Affidavit

One of the more onerous duties required of a family law client is the completion of a financial affidavit.  These documents are used in actions for child support, post-separation support, and alimony. There are two parts to the affidavit:

1) The written or typed financial information

2) The documents that support the client’s contentions.  Guideline child support cases need the basic required documents and very little other information in the affidavit; name, employer, gross Income and costs for the child’s health insurance and work related daycare. For post-separation support, alimony and non-guideline child support cases, the long version of the affidavit is required, wherein all household expenses, including mortgage, utilities, food, clothing, car payment, etc. are listed.

The basic required documents are usually:

  1.  A listing of all addresses in which you have ownership interest
  2. Past 3 months proof of income: a) If W-2 employee: provide earnings statements/pay stubs for past 3 months.   b) If self-employed:  provide earning statements, business income, financial statements, P&L’s, etc.
  3. Past 3 months bank statements for personal and business accounts (checking, savings, money market, savings accounts for the child, if any, etc.)
  4. Most recent debt statements (mortgage, equity lines, car loans, personal loans, student loans, major credit cards, department store credit cards, doctor bills, taxes owed, etc.)
  5. Past 2 years personal tax returns (Federal and State) and W-2/1099 forms, etc. If self-employed, provide business tax returns for past 2 years
  6. Documentation of any work-related childcare you pay for the child
  7. Documentation of your child’s portion of health insurance coverage, if covered through your employer.  Please note: attorneys need documentation of the breakdown of employee only, employee + dependent(s) or employee/family costs to calculate only the child’s portion – your HR Department can typically provide this breakdown.

The amount of income needs to be accurate and this figure should include any and all overtime, bonuses, commissions, or other special payments.   However, there are ways to deal with irregular or sporadic “extra” income that will not cause a severe shortfall in a month where the extra income does not materialize.

The affidavits should be accurate as to the expenses of the party.  Estimates, or rounding up, or down is not allowed in my office, unless documentation is not available after a rigorous search. The Court will want a monthly average of the expenses included on the affidavit.  Electricity and natural charges usually vary by season, so providing 3 fall statements will not provide a real monthly average.  That is why I require at least one years’ worth of documentation—not to be included in the documents served upon opposing counsel, but to verify the affidavit and have them available at trial to show my client’s credibility.  This is important.  An affidavit with all round numbers  $200 for electricity, $500 for food will lose credibility next to an affidavit showing $189.26 for electricity and $492.15 for food combined with an offer to have opposing counsel review the documents.  This rarely happens as counsel does not want to waste time in court. However, if counsel does choose to review the documents and also comes to the same precise calculation, the exercise can be very effective. So effective, in fact, that the request to review the documents is often withdrawn once the first line item is reviewed.

The opposite also often holds true. At trial, I will ask an opposing party how he arrived at his affidavit numbers and usually be told “I averaged 12 months’ worth of statements.”  I ask if the opposing party has the documents he used to calculate the average.  Usually, he says “yes.”  I then ask, “here in Court?”  Invariably I get , “uh, no.”  My firm has the documents in court so our clients can respond with “yes” to that question.

It is a lot of work; but saving statements, receipts, invoices, etc. and placing them chronologically in itemized folders or envelopes or placing them in separate electronic folders will save a lot of attorneys’ fees related to organizing the documentation for the affidavit and trial.  Actually completing the affidavit and compiling the documents will also avoid wasting money on repeated phone calls, e-mails or letters reminding the client of the necessity for the affidavit and how it impacts their case.