Financial affidavits in dissolution of marriage actions: are they really mandatory?

• Author: Manz, David L.
• Position: Florida

Of all the ostensibly sacrosanct principles of Florida family law procedure, the concept that financial affidavits are required in all dissolution of marriage actions and cannot be waived is the polestar. While it is in fact true that the literal language of the Family Law Rules of Procedure mandate that all parties in all dissolution proceedings file financial affidavits, an analysis of the pertinent case law reveals that the courts have in significant measure eviscerated the rule. Indeed, while the rules provide that financial affidavits are mandatory in all dissolution proceedings, the case law supports the proposition that financial affidavits are mandatory only in original proceedings as opposed to simplified dissolutions, and even then only when a specific request for financial relief has been made in the pleadings. Moreover, the answers to several compelling questions are uncertain in the case law. Are marital settlement agreements and final judgments void in the absence of financial affidavits? Can the court proceed with entry of a final judgment in the absence of financial affidavits? If settlement agreements and judgments are not void, can it reasonably be argued that financial affidavits are in fact mandatory?

This article will explore and attempt to answer these questions and, ultimately, pose the theory that it cannot be presumed that marital settlement agreements entered in the absence of financial affidavits may be abrogated, or that final judgments of dissolution entered without a financial affidavit are automatically void, except in a very narrow category of dissolution actions. Ultimately, then, it can well be argued that the proposition that financial affidavits are truly mandatory in all dissolution cases is at least somewhat embellished.

The requirement that financial affidavits are mandatory in dissolution actions is well entrenched in Florida law. (1) Prior to enactment of the Florida Family Law Rules of Procedure in 1996, Fla. R. Civ. P. 1.611 provided that each party seeking child support, alimony, or modification thereof, an equitable distribution of assets or debts; or attorneys' fees, suit money, or court costs, was required to serve on all parties a financial affidavit in substantial conformity with Rule 1.611(a) (2) Rule 6.11 was deleted and relocated to the Florida Family Rules of Procedure November 22, 1995, effective January 1, 1996. (3) The requirements regarding the need for financial affidavits are now found in two separate sections of the rules. Rule 12.105 states that in simplified dissolution procedures: "The parties must each file a financial affidavit (Family Law Form 12.901(d) or 12.901(e)) and a marital settlement agreement (Family Law Form 12.901(h)(3)). (4) In all other dissolution actions, Rule 12.285, subsection(d), sets forth the mandatory disclosure requirements for initial or supplemental proceedings and provides that the filing of a financial affidavit is a "requirement" that "cannot be waived by the parties." (5) Similarly, subsection (c)(1) of Rule 12.285 provides that the financial affidavit requirement "cannot be waived by the parties" in proceedings for temporary financial relief. (6) Rule 12.285 specifically excludes simplified dissolution proceedings and uncontested dissolutions from its requirements.

Construction of the rules as to the issue of whether financial affidavit can be waived has led to different standards for simplified dissolutions as opposed to original proceedings. As to simplified dissolutions, although Rule 12.105 in fact states the financial affidavits cannot be waived, the case law construing the rule indicates otherwise. Varrieur v. Varrieur, 775 So.2d 361 (Fla. 3d DCA 2000), is instructive. In Verrieur, the husband filed a simplified dissolution petition. The parties later mutually divided all of the real property and marital assets and signed a partnership agreement effectuating their agreement. The partnership agreement provided that the parties' rental properties would be jointly owned and operated, and that the rentals would be distributed equally. The trial court then entered a final judgment of dissolution, after the wife testified under oath that she was not coerced, and that the marital property had been divided.

Neither party objected to the proposed financial settlement, and neither party filed a financial affidavit. (7) The Third District ruled that financial affidavits can in fact be waived for simplified procedures under Rule 12.105. (8) The court pointed out that though Rule 12.285 contains specific language which states that the financial affidavit requirement "cannot be waived by the parties," there is no such language in Rule 12.105 for simplified dissolution proceedings. (9) Moreover, the court further noted that Rule 12.285 specifically excludes simplified dissolution proceedings and uncontested dissolutions from its requirements. (10) Citing Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911 (Fla.1995), the court reasoned that if the Supreme Court had intended to prohibit a waiver of the obligation of filing financial affidavits in Rule 12.105, it would have included an explicit statement to that effect, just as it did...