Financial Affidavit Overview
In many ways, the financial aspects of the divorce process are much like a business transaction; couples must calculate child support and spousal alimony, they must value and divide all property, assets and debts, and they must decide whether either owes the other any financial reimbursements. The only way to accomplish this is for each spouse to have a complete and thorough understanding of the other’s finances.
In Massachusetts, both spouses in a divorce must provide copies of their “financial affidavit” (also called a “financial disclosure” or “financial statement”) to the court and to the other side (either the other spouse or the other spouse’s attorney). The financial statement provides the foundation upon which all enforceable divorce settlements are built, because it is supposed to contain complete and accurate information about each spouse’s financial situation. If the information contained in the financial statements is incomplete or untrue, then a divorce settlement based on that information may not be valid.
When to Complete the Financial Affidavit
Both spouses in a divorce are under a duty to affirmatively disclose this information. This means that you are supposed to give this information to your spouse without even being asked. The deadlines for the production of a financial affidavit are as follows:
- within 45 day from the date of the service (delivery) of the summons on the complaint for divorce (legal paperwork requesting the divorce)
- no later than two business days prior to a hearing on a motion for temporary orders or a pretrial conference, in the event either is scheduled prior to the expiration of the 45-day period, and
- updated financial statements must be filed and served every time you appear before the court regarding any financial matter.
What to Put in the Financial Affidavit
The financial affidavit is a standard, fill-in-the-blanks document, which (when filled out properly) should give a complete picture of each spouse’s finances as of the day it’s signed. Both sides must disclose complete and accurate information about their income, expenses, assets (all property, such as homes, cars, jewelry, collectibles, bank accounts, retirement benefits information, stocks and stock options, copyrights, and business assets) and liabilities (debts). The court, attorneys and the other spouse rely on the financial affidavits in order to calculate the appropriate amounts for child support, spousal support (also called alimony), and to determine the proper division of assets and liabilities between spouses.
More specifically, spouses must identify their weekly income, weekly deductions from salary, weekly expenses, assets and liabilities.
What is weekly income?
When determining what counts as weekly income, spouses should consider whether they receive exactly the same paycheck every week for 52 weeks. If so, estimating weekly income should be easy. However, if your paycheck varies during the year, you need to look a little further for information including, whether you work overtime, get bonuses, perform seasonal work, collect unemployment for part of the year, get tips, work on commission, or are self-employed. If any of these apply, you’ll need to find an average weekly income based on the previous 52 weeks. In addition, you should consider the following:
- Your weekly income is not limited to your paycheck. Perks of your job may also count as income, including a company car, expense accounts, which may include personal use items (for example, gasoline, season tickets to games or concerts). If company perks add to your lifestyle, then they should also be included in your weekly income.
- Other sources of weekly income may include interest and dividends, trusts, annuities, pensions, retirement funds, social security, disability payments, unemployment, public assistance, rental income, child support, and alimony - all these need to be averaged to get a weekly amount.
These include your federal and state income tax withholdings, F.I.C.A. (social security), Medicare tax, Medical insurance, and union dues. These are considered mandatory and/or necessary adjustments. Other adjustments you might see on your pay stub include, credit union (loan repayments or savings), direct deposits for savings or retirement accounts, 401K plans, contributions to United Way, and uniforms. Most of these are optional. You should speak with a tax preparer if you have specific questions about adjustments.
Weekly expenses include all expenses you incur each week. Although most expenses are billed monthly and some quarterly, you can simply divide the monthly amount by 4.3 to come up with a weekly expense. (Just dividing by 4 will overstate your expense). For doctor’s bills or other items that don’t necessarily recur every month, add them up for the year and divide by 52. The following are some of the most common examples:
- mortgage and homeowner’s insurance
- electric bill, water, garbage and phone bills
- gasoline for your car, car insurance, car payments, and tolls
- doctor/dental/medical bills, and
- groceries, clothing, toiletries and other household expenses.
Assets including anything you have that has a cash value – both liquid assets and real property. Liquid assets are your cash on hand, the money in your checking and savings accounts, money market accounts, stocks, bonds, mutual funds, certain retirement accounts (if they can be converted into cash easily), profit sharing plans, and the cash value of your life insurance.
Other assets are those that are harder to turn immediately into cash, such as real property, which includes any houses, buildings and land that you own either separately or jointly with your spouse. For the purposes of the financial affidavit, you need to list all property, including anything you consider to be your separate property. This includes the marital home, second homes, vacation homes, rental and business property.
You’ll also need to include all automobiles, boats, recreational vehicles, equipment, tools, collections, jewelry, paintings, and household furnishings. If you own a business, the value of the business must also be included. The basic rule: if it has a value, it should be listed.
If you don’t know the value of your property, you may be able to estimate the value pretty easily. Websites such as www.trulia.com or www.zillow.com may give good estimated values of your property. In addition, you may be able to use www.craigslist.com to get an idea of what your used furniture or electronics might be worth. Remember, you’ll need to use “fair market value” (“FMV”), which is the amount you could sell an item for on the open market today, not what you paid for it when you bought it. Some items that are harder to value, such as specialty collectibles or even real property, will need to be appraised by a professional.
You will need to list all debts including any mortgages, loans, car loans, and credit cards: anything you owe money for and are making or intend to make payments for.
Once both sides have accurately presented all of the foregoing information, the parties and their attorneys will be in a position to negotiate a fair and fully informed divorce settlement.
If you have any divorce-related questions or questions about a financial affidavit in your divorce, you should contact a local family law attorney for advice.
For a link to instructions and sample Financial Statement forms, click here for the Massachusetts Court System website.