Are Financial Affidavits Mandatory in Every Divorce Case?

Collaborative professionals have long labored under the assumption that Florida law requires financial affidavits in every divorce case, even the collaborative ones.  But, in Salczman v. Joquiel, Florida’s Third District announced that financial affidavits are not necessarily compulsory.[1]  In that case, there were no children, and neither party had requested any form of permanent relief from the other.

In many ways, Salczman resembled a typical collaborative case without children.  Both parties were financially secure when they married, and, in anticipation thereof, with benefit of counsel and full disclosure, had executed an antenuptial agreement. The agreement provided that, in the event of divorce, each would retain any premarital property, they would divide jointly titled property equally, and neither would be entitled to spousal support.

After just three years, the wife petitioned for divorce, averring that their antenuptial agreement should be fully enforced. She sought no financial relief. The husband admitted wife’s allegations and requested that their only two jointly titled assets be divided equally, pursuant to their agreement. The parties then amicably disposed of those assets.

Later, at final hearing, the trial court entered a final judgment granting the dissolution and incorporating the antenuptial agreement, finding it fair and reasonable on its face, and executed after full disclosure between the parties. Further, the court found that the parties had distributed all of their assets and liabilities in accordance with their agreement and that no financial issues remained to be decided.

But over their objections, and simultaneously with entry of its final judgment, the court ordered both parties to submit financial affidavits.

The Salczman parties both appealed, arguing that, because there were no financial issues to be determined, applying the financial affidavit requirement violated their constitutional right to privacy. The Third District never reached that issue, however, concluding that the rule itself rendered its terms inapplicable.

Rule 12.285(d)(1) provides:

A party shall serve … in any proceeding for an initial or supplemental request for permanent financial relief … [a] financial affidavit in substantial conformity with Family Law Form 12.901(d) …, which requirement cannot be waived by the parties.

Said the Salczman Court:

It stands to reason then, that if a court in a dissolution proceeding under this rule is not being called upon to award any permanent financial relief to a party, financial affidavits are not required and are indeed wholly irrelevant to the proceeding.

Because neither party requested permanent financial relief, because the parties resolved equitable distribution prior to final hearing, and because their agreement was unassailable, there was absolutely no issue as to financial relief. Thus, filing financial affidavits served no purpose and the rule did not so mandate.[2]

[1] 776 So. 2d 986 (Fla. 3d DCA 2001).

[2] In Kelner v. Kelner, 970 So. 2d 933 (Fla. 4th DCA 2008), the Fourth District, on similar facts, but involving simplified dissolution, cited Salczman, ruling “parties to a simplified dissolution may waive the filing of financial affidavits under the circumstances presented here notwithstanding the language in rule 12.105.”

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