Lies and Misrepresentations on the Financial Affidavit in Divorce Actions
When a divorce proceeding is initiated, the Plaintiff files his or her Complaint for Divorce along with his/her Financial Affidavit
and other pleadings. The Financial Affidavit
, a “sworn” statement made under oath disclosing the incomes, assets, liabilities of the parties and the monthly expenses of the Affiant. The Financial Affidavit, also called the Affidavit of Income and Expenses, is a very important pleading, as it provides the filing party the opportunity to request (1) temporary custody of the child or children, (2) temporary child support, and/or (3) temporary spousal support during the pendency of the proceeding. This Financial Affidavit is also the pleading that is relied upon by the Court in determining the amount of temporary support (child and/or spousal support). Accordingly, if the Plaintiff “lies” or “misrepresents” the incomes or earnings of either party, the resultant Temporary Order of Support may be improper and unduly burdensome to the Obligor (person ordered to pay support).
The first step to avoid a “bad” Temporary Order is to make sure that your Financial Affidavit is through and accurate. If you are the Defendant and see an inaccurately low income amount listed for your spouse’s income, it is a smart move be sure to make a notation on your financial affidavit and attach documentation such as his/her paystub or W-2. The Judge or Magistrate involved in determining the support in a divorce case usually only reviews BOTH parties’ Financial Affidavit (with attachments), but not other extraneous motions.
Examples of Financial Affidavit Issues:
Plaintiff/Wife is the party initiating the action. She indicates to the Court on the financial affidavit that she wants to be granted temporary custody of the parties’ two minor children and that she wants to be granted temporary child support and temporary spousal support to assist her with payment of her monthly expenses during the divorce process. But, if she indicates that the Defendant/Husband has earnings of $80,000 rather than his true earnings of $60,000, the Court’s Temporary Order of Support may be too high for Defendant to pay to Wife. In that event, the Husband’s Attorney would have to prepare and file a Motion for an Oral Hearing so that testimony and evidence could be provided to the Court in order to effect a change and reduction in the Temporary Order of Support.
While some “lies” or “misrepresentations” may be deliberate in nature, there are also instances wherein the Plaintiff does not know what his or her spouse’s income or earnings truly are. Even in this modern age and time, there remain couples wherein one has complete and total control over financial information and total control over the primary checking account. If a party is really unsure or uncertain of the other spouse’s income, that party can state that the income is an estimate or an approximate income.
Besides immediately filing a Motion for an Oral Hearing, are there are other actions that can be taken by the Attorney representing the Defendant who has been directed to pay an inordinately high support obligation. I have provided verification of my client’s earnings to opposing counsel in an attempt to negotiate a lower support obligation in order to avoid the filing of a Motion for Oral Hearing. The success or non-success of this course of action will depend upon the willingness of opposing counsel to “right” or “remedy” an obvious mistake in fact.
Another fairly common problem with the Financial Affidavit exists when the Plaintiff requests temporary support, provides the Court with her “anticipated” monthly expenses, but fails to advise the Court he/she is currently living with his/her parents and has no monthly expenses. In this example, the Court will generally award the Plaintiff the housing expenses thathe/ she says that he/she has for rent, utilities, water/sewer, and phone. As before, if the attorney representing Defendant cannot negotiate a lower temporary award of support with opposing counsel, the attorney must file a Motion for an Oral Hearing to address the inequity of the Temporary Order.
While our clients may be truly incensed that their spouses would “lie” or “misrepresent” incomes or circumstances on his/her Financial Affidavit, it appears to happen so frequently that no one is truly surprised by it and it would be a rare circumstance that anyone would be sanctioned or punished for the “misrepresentation”.
Unfortunately, the occurrence of “misrepresentation” of incomes and/or monthly expenses appears to be a routine event in our Domestic Relations Courts. I have researched cases and have not found one reported decision where the Court awards attorney fees or requesting the prosecuting attorney to file a perjury charge against the dishonest party. Perhaps, if Courts were more vigilant in “punishing” parties who lied on these sworn financial affidavits, there would be less problems with initial Temporary Orders.
It is my belief that our responsibilities as practitioners in the field of Domestic Relations include the following:
- Encouraging our clients to be honest and accurate with the preparation of his/her Financial Affidavit.
- Encouraging our clients to provide to us verification of their incomes, their spouses’ incomes, and of their monthly expenses.
- Filing Motions for Oral Hearings in cases wherein there has been “lying” or “misrepresentation” of incomes and/or monthly expenses with a request for attorney fees.
- Providing to the Court accurate and current information regarding the incomes of our clients.
If you are in a divorce and a Temporary Order is issued that seems wrong, be sure to talk with your attorney to consider the options of how to hopefully rectify the situation. If you would like to have a consultation with an experienced Attorney, kindly contact The Cutler Law Firm at 248-489-8780 or complete THE CONTACT FORM
and an Attorney will promptly respond to your inquiry