Florida Dissolution of Marriage: Mandatory Disclosure - What and Why?
Viewed from a personal perspective rather than collectively as a couple, comparing the amount of wealth and assets once shared in marriage relative to what will be your share after asset division can be daunting. What was once thought sufficient to maintain a happy relationship and comfortable lifestyle together now seems, when division is contemplated, wholly inadequate. As significant a toll as divorce takes on one’s emotions, it can ravage marital assets–the wealth and possessions accumulated during the marriage–particularly so because of the high emotions involved, which, if allowed to control or influence decision-making, can distort good reason and objectivity. The “fight" over money and property can easily become all-consuming, involving everything to the exclusion of all rationale, with the only certainty being detriment of your financial well-being when the “war" is over.
Litigation is expensive. Understand that truth. The more in dispute, and the greater the number of disagreements, the longer the case takes to reach final judgment, and the greater the expense to the parties involved, which then leaves less money in the end when the fight is over. There is good reason litigation has been likened to war; both are very expensive to wage.
For these reasons, the spending of finite marital assets on the cost of funding protracted litigation by divorcing couples has concerned the courts in Florida. Too often limited wealth was seen vanquished by attorneys fees and the associated costs involved in acrimonious litigation. In an attempt to minimize the expense of litigation in the dissolution of marriage process, the Supreme Court of Florida implemented Florida Family Law Rule of Procedure 12.285, which creates a procedure for automatic financial disclosure in family law cases.
This rule is designed to eliminate the need for attorney time (i.e., attorneys fees) being spent on extensive and protracted discovery in an effort to secure all relevant financial information about the other party, which your attorney needs in order to properly evaluate fair division on your behalf. It is designed to save you money, and to speed up resolution of your case. Unfortunately, however, on occasion, one spouse will attempt to hide assets and not fully disclose as is required. In such cases, discovery of this deception can require extensive time and effort to uncover and prove the fraudulent actions of the other spouse, which in the end will unavoidably expend considerable marital assets.
What is required to be disclosed within 45 days of service of the initial pleading on the respondent is set out in the Rule 12. 285, of the Florida Family Law Rules of Procedure. Under the rule, disclosure requirements for initial and supplemental proceedings include the following:
(1) A Financial Affidavit. There are two forms of financial affidavits; one for use by a party whose gross annual income is less than $50,000, and another for use by a party whose gross annual income is equal to or greater than $50,000.
(2) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed for the past 3 years.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months prior to service of the financial affidavit.
(5) A statement by the producing party identifying the amount and source of all income received from any source during the 3 months preceding the service of the financial affidavit required by Rule 12.285 if not reflected on the pay stubs produced.
(6) All loan applications and financial statements prepared or used within the 12 months preceding service of the party’s financial affidavit required by Rule 12.285, whether for the purpose of obtaining or attempting to obtain credit or for any other purpose.
(7) All deeds within the last 3 years, all promissory notes within the last 12 months, and all present leases, in which the party owns or owed an interest, whether held in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.
(8) All periodic statements from the last 3 months for all checking accounts, and from the last 12 months for all other accounts (for example, savings accounts, money market funds, certificates of deposit, etc.), regardless of whether or not the account has been closed, including those held in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.
(9) All brokerage account statements in which either party to this action held within the last 12 months or holds an interest including those held in the party’s name individually, in the party’s name jointly with any person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.
(10) The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account) in which the party is a participant or alternate payee and the summary plan description for any retirement, profit sharing, or pension plan in which the party is a participant or an alternate payee.
(11) The declarations page, the last periodic statement, and the certificate for all life insurance policies insuring the party’s life or the life of the party’s spouse, whether group insurance or otherwise, and all current health and dental insurance cards covering either of the parties and/or their dependent children.
(12) Corporate, partnership, and trust tax returns for the last 3 tax years if the party has an ownership or interest in a corporation, partnership, or trust greater than or equal to 30%.
(13) All promissory notes for the last 12 months, all credit card and charge account statements and other records showing the party’s indebtedness as of the date of the filing of this action and for the last 3 months, and all present lease agreements, whether owed in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.
(14) All written premarital or marital agreements entered into at any time between the parties to this marriage, whether before or during the marriage. Additionally, in any modification proceeding, each party shall serve on the opposing party all written agreements entered into between them at any time since the order to be modified was entered.
(15) All documents and tangible evidence supporting the producing party’s claim that an asset or liability is nonmarital, for enhancement or appreciation of nonmarital property, or for an unequal distribution of marital property. The documents and tangible evidence produced shall be for the time period from the date of acquisition of the asset or debt to the date of production or from the date of the marriage, if based on premarital acquisition.
(16) Any court orders directing a party to pay or receive spousal or child support.
If a party is in need of immediate financial relief, then the disclosure requirements in a proceeding for Temporary Financial Relief, to be heard within 45 days of service of the initial pleading, is abbreviated and consists only of the items listed in (1) through (4) above. However, a request for permanent financial relief, such as child support, alimony, equitable distribution of assets or debts, or a request for attorneys’ fees, suit money, or costs, still requires disclosure of all the items listed above.
There is also a duty on both parties to supplement disclosure of subsequently discovered or acquired documents listed in this rule, or to file an amended financial affidavit whenever a material change in financial status occurs.
As is evident by the extent of the list above, much needs to be done in a short period of time once an initial or supplemental pleading is filed and served in cases involving divorce. Hiring an attorney to represent and help you navigate through the complexities that can be involved in a dissolution of marriage provides not only legal counsel, but to a degree, peace of mind as well. If you are without representation, I invite you to contact me to discuss your legal situation and what I can do for you.
The Trerotola Firm, P.A.
4651 Salisbury Road, Suite 494
Jacksonville, Florida 32256