Before we jump into this topic known as “discovery“, it all starts with the financial affidavit, also known by legal jargon as a “13.3” in Chicago (or Cook County generally) is a legal document that each party to a divorce or parentage action involving financial issues has to complete. Cook County Local Rule 13.3.1 states, in pertinent part, that “each party shall serve a completed affidavit of incomes, expenses, debts, and assets (“Financial Affidavit”) upon the other party on forms approved by the court”… “not later than thirty (30) days after service of the initial pleading and the Respondent shall serve the completed “Financial Affidavit” not later than thirty (30) days after the filing of the Responding party’s appearance…”
A financial affidavit contains almost all information a fact-finder, i.e. judge, needs to resolve certain issues involving child support, maintenance, etc. As you will note from the link above, a financial affidavit starts off with a party’s biographical information, then proceeds to that person’s income, expenses, assets, liabilities, and finally health insurance coverage. This form is promulgated by the Illinois Supreme Court and is authorized for use in all domestic relations / family law cases in Illinois.
The purpose of a financial affidavit is to have a full, preliminary disclosure of a party’s assets and liabilities, as well as a statement of that party’s income and expenses. All these go directly towards the issues that may arise during the course of litigation involving support or division of assets and liabilities. In addition to a fully completed financial affidavit, a party is also required to submit the previous two years of filed income tax returns and 5 recent pay stubs. In case of people who have their own businesses or receive other forms of non-employee income, the situation can become more complex and we are happy to discuss your unique situation directly with you.
Now, returning to the topic at hand: what if my husband or wife fills out their financial affidavit and either misstates or completely omits information?
The first page of the financial affidavit contains a sentence that cautions the filler that “If you intentionally or recklessly enter inaccurate or misleading information on this form, you may face significant penalties or sanctions, including costs and attorney’s fees…” Similarly, the last page of the financial affidavit contains a “Verification by Certification” pursuant to Section 735 ILCS 5/1-109 of the Illinois Code of Civil Procedure that requires the filler to attest that: “I certify that everything in the Financial Affidavit is true and correct. I understand that making a false statement on this form is perjury and has penalties provided by law under 735 ILCS 5/1-109.” The statute further goes on to state that “any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.” What this means is that “any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.” This additional warning is also stated clearly next to the signature line.
So in the event your husband or wife lies, misstates, omits, or otherwise makes a false statement on their financial affidavit, their penalties can be severe. Generally speaking, from experience, this will be by way of sanctions, usually in the form of attorney’s fees. The person who has made false statements would be ordered to pay reasonable attorney’s fees determined by the court to the other party. This is a punitive sanction that is used to encourage that party from committing such falsifications in the future. A subconscious effect of this is that the judge will scrutinize this party more closely going forward since they’ve already been found to be lying or misleading the court or the other party. Additionally, they will be required to deliver an accurate financial affidavit within a strict deadline or look to face additional sanctions.
So if your husband or wife really want to lie on their financial affidavit, they can choose to do that. You now know that the penalties can be severe and it is more likely than not that they will be caught in their lie. It’s always better to just be upfront with everything as opposed to lying or hiding assets; that just never works and usually ends poorly for that person.
If you want to read more about sanctions, you can visit this page for more information.
If you suspect your husband or wife has lied or will lie about their income or assets in your divorce, contact my Chicago, Illinois law office for a free consultation.