Amendment would shield some financial affidavits of divorcing parties from public disclosure
Cory Brandfon
The Board of Governors has voted to accept a Family Law Rules Committee proposal that, under certain circumstances, would allow divorcing parties to waive the filing of financial affidavits.
At its December 3 meeting on Amelia Island, the board voted 31-1 to recommend acceptance of the proposal, despite the objection of the Family Law Section.
“This is about privacy and self-determination,” said Tampa attorney Cory Brandfon, who chaired a Family Law Rules subcommittee that developed the proposal. “This has been on everybody’s radar for a long time.”
Brandfon said a special panel considered the section’s objection, but decided to press ahead.
“We were essentially diametrically opposed to the section’s position on this issue and feel that our essentially three years of diligent research has put us in a strong position to address the section’s concerns, and potentially, this board’s as well,” Brandfon said.
The proposal would apply to uncontested divorces and is contained in proposed amendments to Florida Rule of Family Procedure 12.285 (Mandatory Disclosure), new Form 12.902(l) (Affidavit of Income for Child Support), and new Form 12.902 (k) (Notice of Joint Verified Waiver of Filing Financial Affidavit).
The proposal was noticed in the May edition of the Bar News, and the Family Law Section filed the only objection.
Under Rule of General Practice and Judicial Administration 2.140(e) the Board of Governors could only vote to recommend acceptance, rejection, or amendment. The proposal goes next to the Supreme Court for final determination.
The proposal would allow couples in certain circumstances to waive filing financial affidavits, but they would still be required to fill them out and exchange them, Brandfon said.
When they request a waiver, parties would be required to acknowledge that they have exchanged affidavits and are required to keep them and maintain copies of all documents, Brandfon said.
“It does not obviate the need to exchange financial affidavits, or backup documents for financial affidavits,” Brandfon said. “It does not jeopardize the right of discovery among the parties in any way.”
Couples would still be required to file guideline worksheets, giving judges the ability to confirm that child support was calculated accurately, Brandfon said.
A privacy option is more important now that court records are easily accessible on the internet, and the financial affidavit has become more detailed, Brandfon said.
The affidavit lists 65 categories, including a couple’s psychological expenses, and their children’s psychological expenses, Brandfon said.
“We think that those factors, among others, warrant the court to take another look at this, and see if there’s a way to provide an alternative form of privacy, primarily to folks who aren’t going to be dealing with contested financial matters, because ultimately, that’s what we expect that this will be utilized for,” he said.
Board member Hillary Creary asked Brandfon to describe the Family Law Section’s objection. Some section members were concerned that couples would lose the affidavits and jeopardize the ability to modify the agreement, or verify a substantial change in income, Brandfon said.
But the committee determined those risks were small, Brandfon said.
“The financial affidavit not being in the court file, per se, is certainly not a hard barrier to modification,” he said. “The income should be in the final judgment.”
The proposal is designed to benefit the tens of thousands of couples who are granted an uncontested divorce without going to court, and who never seek a modification, Brandfon said.
“These folks will be able to make a knowing and intelligent waiver of their requirement to file these affidavits, and they will be able to preserve their privacy.”
