Q: What is a Financial Affidavit, and How is it Used?

A: A financial affidavit looks a lot like an itemized tax return. It is a document on which couples in the process of divorce list their income sources and expenses, and where they classify their assets and liabilities as marital or non-marital property. The purpose of the document is to determine equitable distribution of property, including spousal support payments, if any.  Couples with and without children must file a financial affidavit.

Q: What is the Difference Between the Long Form Affidavit and the Short Form Affidavit?

A: As their names suggest, the difference between the two affidavits is the length and level of detail. The long form affidavit is a multi-page document with much more detail. All divorces require a family law financial affidavit. If at least one spouse has an individual annual gross income of at least $50,000, the couple must file the long form affidavit.

Q: When Should You File the Financial Affidavit?

A: Ideally, you should file the affidavit of support with your petition for divorce. You must get the document notarized before you file it with the court. You must deliver a copy of the complete affidavit to your spouse within 45 days of filing for divorce.

Q: How Does Domestic Violence Affect the Financial Affidavit?

A: Even if there is domestic violence involved in a divorce case, the parties must still file a financial affidavit.  The difference is that, if you have a protective order against your spouse because of domestic violence, you are not required to list your address on the financial affidavit.  If this is the case, you must file a Petitioner’s Request for Confidential Filing of Address. In other words, you must disclose your address to the court, but not to your spouse.

Contact Alan Burton About Division of Property

Even in relatively uncomplicated divorce cases, it still helps to get a professional legal opinion.  Contact Alan R. Burton in Boca Raton, Florida for advice about your family law financial affidavit.

The Marriage(s) of Alan and Lolita Grayson

Alan Grayson and Lolita Carson married in 1986; it was a second marriage for both. The couple went on to have five children together. In 1990, Lolita Grayson applied for United States citizenship, and Alan Grayson saw her citizenship application before she submitted it. On the application, she listed her marital status as “separated.” More than 20 years later, during the couple’s divorce proceedings, it was revealed that Lolita was still legally married to her first husband at the time that she married Alan Grayson. In 2015, a judge annulled their marriage, declaring it void because of bigamy. In other words, the court declared that the couple had never been legally married because Lolita was legally married to someone else when she and Alan Grayson married each other.

How Is an Annulment Different from a Divorce?

The Graysons’ divorce was complicated for many reasons. In addition to the couple’s acrimonious disputes over their assets, which were valued at approximately $30 million, Lolita accused her husband of physical abuse. The divorce proceedings ended up dragging on for years.

It was the revelation of bigamy that became the deciding factor in the court declaring the couple legally unmarried. According to Florida case law, bigamy is one of the most compelling grounds for annulment; it automatically means that the marriage is void. Florida law distinguishes between a void marriage (one that, legally, never existed) and a voidable marriage (one that is no longer legally valid). In some ways, an annulled marriage is like a divorce, but in some ways, it is different. For the Graysons, it meant that the court did not award alimony to Lolita. If their marriage had been valid, she might have been eligible for permanent alimony, as courts sometimes award permanent alimony in divorces that follow very long marriages. This is notable because the couple had fought bitterly over the division of their property during the divorce proceedings. At the time of the annulment, four of the couple’s five children were still minors.  Therefore, the parents were still financially responsible for them, as any parents, married, previously married, or never married, would be under Florida law.

Contact Alan Burton About Division of Property

Void marriages are an extreme case, but there is great variation when it comes to how Florida courts divide a couple’s property. Contact Alan R. Burton in Boca Raton, Florida about the division of property between you and your ex-spouse.

Details of the Mills v. Mills Case

During the 37 years that he was married to his wife Brenda, Barry Mills entered into a number of investments, many of which turned out to be profitable. In 2007, Barry and several other investors attempted to form a startup bank. In order to cover his share of the startup capital, Barry took out a home equity loan in the amount of $100,000 dollars; as per the terms of the loan agreement, he pledged the couple’s house as collateral to secure the loan. Certain that Brenda would refuse to sign for the home equity loan, and knowing that he would not have sufficient funds to participate in the startup bank project without the loan, Barry signed Brenda’s name on the loan documents without her knowledge. When the startup bank applied for a state charter, the state refused to issue one, meaning that Barry lost his investment, which totaled more than $245,000. When the lenders required the Mills family to repay the loan, they repaid it using money from Barry’s retirement funds.

When the couple divorced, the trial court classified the loss resulting from the startup bank project as a non-marital liability. The court’s reasoning was that, except in cases of misconduct, all assets and liabilities taken on during the marriage count as marital property. Brenda appealed the decision, arguing that a forged signature qualifies as misconduct.  Barry did not deny forging Brenda’s signature on the loan documents. The appeals court sided with Brenda and re-classified the loss as a non-marital liability.

What Is Misconduct in the Context of Equitable Distribution?

One of the only reasons that a Florida court will classify a debt incurred during the marriage as a non-marital liability is if one spouse can prove that the debt is the result of misconduct on the part of the other spouse. This often takes the form of one spouse sabotaging the couple’s finances in order to reduce the amount of spousal support that he or she will have to pay when the couple divorces. Another type of misconduct commonly cited in divorce cases is when one spouse spends or borrows money to support an extramarital affair partner. The appeals court in the Mills v. Mills case ruled that forging a spouse’s signature in order to obtain a loan without the spouse’s knowledge qualifies as misconduct.

Contact Alan R. Burton About Division of Property

Finding out that your spouse has been deceiving you about finances can be one of the worst parts of divorce. Contact Alan R. Burton in Boca Raton, Florida with questions about the classification of marital and non-marital property.

Florida’s Equitable Distribution Doctrine

Florida courts divide divorcing couples’ property according to the principle of equitable distribution. In other words, they go by what is fair. They do not always divide marital property evenly, and they do not simply take into account how much income each spouse brought in and then let each spouse keep only the money he or she earned. Florida law also considers unpaid contributions to the marriage as reasons a person is entitled to a certain share of the marital property. For example, time spent as a stay-at-home parent also counts as a contribution. The logic is that, when taking care of the children full time, the stay-at-home parent spouse was freeing up the other spouse to concentrate more on earning money.

The courts also consider misconduct, which, in the case of equitable distribution means intentionally misusing marital property in order to sabotage the marriage or in order to prevent the other spouse from having access to it in the event of a divorce. Examples of misconduct include spending money on an extramarital affair partner or gambling with jointly owned money.  Unsuccessful business ventures undertaken in good faith are not considered misconduct.

The Gotro Case and Equitable Distribution

John Gotro and Catherine Gotro were a Florida couple married for 39 years. All of their children were adults at the time they divorced, so child support and parenting plans were not part of their divorce case. The couple’s assets were considerably less at the time their divorce was finalized than when it was initiated. Catherine alleged misconduct, claiming that her husband intentionally wasted the money, so that the divisible assets would be less when the divorce was finalized.  John claimed that he had spent the money on household expenses for him and for his estranged wife, meanwhile paying her temporary alimony. The court sided with John, as misconduct, as it applies to equitable distribution, refers only to a very specific set of behaviors. It is also notable in this case that the court awarded Catherine permanent alimony because of her age and the length of the marriage.

Let Alan R. Burton Help You Navigate Property Division in Divorce

Dividing property in a divorce is not just as simple as calculating who earned how much.  Contact Alan Burton in Palm Beach County with questions about your entitlement to your share of marital property in divorce.

One important tool in dividing rights to retirement accounts is the Qualified Domestic Relations Order, commonly called the QDRO. When a person owns a retirement account, he or she will likely initially be the only payee who will receive the proceeds of that account. However, retirement funds saved and invested during a marriage are considered to be marital property, even if the funds only came as a result of the job of one spouse. In the event of a divorce, one spouse may obtain the rights to also be an alternate payee for the retirement account.

However, certain plans such as those under the Employee Retirement Income Security Act (ERISA) will not simply pay the funds to an alternate payee without the appropriate paperwork. In such situations, a QDRO is needed to ensure the divided funds go to the former spouse or other dependent.

A QDRO is a court order that legally instructs the retirement or pension plan to split the payouts among the designated payees according to the percentages or amounts set out in the QDRO. A QDRO can be used to obtain retirement funds for the following reasons:

• As part of the division of marital property;
• As part of spousal support payments;
• As part of child support payments.

Simply because divorcing spouses agree to divide retirement accounts does not mean that the retirement plan is under any legal obligation to do so unless it has a QDRO. The amount that must be paid according to the QDRO will depend on many factors including whether there were retirement savings prior to the marriage or any specific property division agreements that divided the accounts in a way that was not 50% for each spouse.

In order to be valid, a QDRO must have many specific pieces of information, including:

• The name of the retirement plan;
• The full name, social security numbers, and contact information for both the initial payee (the employee) and any new alternate payees under the QDRO;
• The amount to be paid to each payee and the duration for benefits to be paid to the alternate payee, if applicable.

Contact a Qualified Divorce Lawyer in Boca Raton Today

Dividing assets in divorce can be relatively simple or can be extremely complicated. Whether your property is minimal or whether you and your spouse have multiple retirement accounts, business interests, real estate properties, and more, the law office of Alan R. Burton in Boca Raton can help you. Mr. Burton is a highly experienced family law attorney and understands how to handle divorces involving high or low assets in the most efficient way possible. Please call for a free consultation at 954-229-1660 as soon as possible.