More about This Topic
Do I Have To Fill Out A Financial Affidavit In An Illinois Divorce?
After you’ve retained a divorce attorney for your Illinois divorce, one of the first things you’ll be asked to do is to fill out the Financial Affidavit for Divorce & Family Cases. This is a standardized, approved by the Illinois Supreme Court, 9 page document that virtually everyone involved in an Illinois divorce case must fill out. This document is extremely important to your Illinois divorce but is cumbersome, hardly ever accurate and often distorts reality rather than clarifies reality. So, do you have to fill out a financial affidavit in an Illinois divorce?
Where To Find The Financial Affidavit
The Illinois statute only tells us where to find the form.
“One form of financial affidavit, as determined by the Supreme Court, shall be used statewide” 750 ILCS 5/501(a)(1)
The Illinois Supreme Court’s website then directs us to this financial affidavit form for divorce & family.
While the form has notes on the left-hand margin, the first step in understanding how to fill out the Illinois financial affidavit (family & divorce cases) is to look at two accompanying documents
The first document is titled Getting Started
The “Getting Started” form tell us that the purpose of these forms is “To provide financial information and documents to the other party and the court in cases involving child support, children’s expenses, college expenses, spousal maintenance (alimony), or attorney’s fees.”
The “Getting Started” form then tells us that the statute governing this form is 750 ILCS 5/501 “Temporary Relief,” Illinois Marriage and Dissolution of Marriage Act.
There is a more detailed form provided by the Illinois Supreme Court titled “How To Complete A Financial Affidavit”
This form specifically states under “Who must complete a financial affidavit: Any party being asked to pay child support, children’s expenses, college expenses, spousal maintenance (alimony) or attorney’s fees.”
Again, children’s expenses and college expenses are not included under 750 ILCS 5/501 which only addresses temporary relief.
The only part of the temporary relief statute that references the financial affidavit is the section dealing with temporary child support and/or maintenance.
The instructions get even more vague by saying, “When Is The Financial Affidavit Due? There is no general rule. There may be local rules about when to file a Financial Affidavit. If there are, you must follow these rules. Ask the Circuit Clerk where to find these rules.”
I practice in Cook County, Illinois which provides local court rules.
The Financial Affidavit in a Cook County, Illinois Divorce.
If your divorce is in Cook County, you always have to fill out and tender a financial affidavit to the other side if you want ANY kind of hearing in a family law court.
“(a) Pre-Judgment Disclosure –In all pre-judgment proceedings in which a party is seeking division of the marital estate, to establish, modify or enforce an order for maintenance, child support, or educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, disposition of property in a civil union, retroactive child support in parentage matters, or attorney’s fees and costs against the other party, 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. The service of the “Financial Affidavit” shall be as follows:
(i) The Petitioner shall serve the completed “Financial Affidavit” 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; or
(ii) Not less than seven (7) business days prior to a hearing, whichever date first occurs
When further relief is sought from the court and a material change of circumstances has occurred, an updated completed “Financial Affidavit” must be served on the other party no less than seven (7) days prior to any hearing.
(b) Post-Judgment Disclosure – In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, or attorney’s fees or costs, the parties shall exchange a completed “Financial Affidavit” unless either party files a written objection with the court and shows good cause why such exchange should not be required. The service of the “Financial Affidavit” shall be as follows:
(i) The Petitioner shall serve the completed “Financial Affidavit” 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; or
(ii) Not less than seven (7) business days prior to a hearing, whichever date first occurs.” Cook County Court Rule 13.3.1
Financial Affidavit Supporting Documents
An Illinois domestic relations financial affidavit does not stand on its own. A financial affidavit must attach supporting documents.
“The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)(1)
The statute does not say how many tax returns, pay stubs and banking statements. The instructions to the financial affidavit merely say “your most recent.”
You’re probably better off including a full year’s worth of everything. It will all be asked for in a subsequent Notice To Produce.
What Happens If I Don’t Fill Out A Financial Affidavit In An Illinois Divorce?
Under the Illinois statute, the only penalty for not filling out and tendering a financial affidavit is that you cannot ask for a summary hearing for temporary child support or maintenance (alimony).
“No party, however, is eligible to opt in unless the party, under applicable court rules, has served the other party with the required Supreme Court approved Financial Affidavit (Family & Divorce Cases)” 750 ILCS 5/501(a)(2)(E)(II)
A summary hearing is quick hearing based solely on the financial affidavits themselves without testimony. So, if you don’t plan on using a financial affidavit, this wouldn’t apply to you anyways.
Cook County, in particular, is more strict than the general Illinois Statute.
“Sanctions for Failure to Comply – Failure of a party to timely serve the “Financial Affidavit” shall subject the non-complying party to such sanctions as the court deems appropriate, including all sanctions available under Illinois Supreme Court Rule 219. Failure to comply shall not be sufficient cause for a responding party not in compliance to obtain a continuance of the hearing.” Cook County Rule 13.3.1(c)
Long story short, you’re going to have to eventually fill out a Financial Affidavit in an Illinois divorce unless you and your spouse agree otherwise.
If both parties waive the requirement to fill out and exchange financial affidavits in an Illinois divorce, the court is very unlikely to verify independently that financial affidavits were, in fact, completed.
What Happens If I Can’t Fill Out A Financial Affidavit
The financial affidavit is set up for the 90% of people who are paid regularly monthly and have regular monthly expenses and a decent knowledge of their own finances.
You may be an entrepreneur with great swings in your income and expenses. You may be a spouse who is kept in the dark about your expenses and therefore does not know.
The form “How To Complete A Financial Affidavit (Family Law & Divorce)” tells us what to do
“What if I do not have all the information available to answer all the questions?
You will need to show the judge you did your best to obtain all the information asked for. If you do not have all the information at the time you complete the Financial Affidavit, give what you have and provide the rest as soon as possible.”
“Do I have to answer all question?
Yes, answer all questions and complete all sections of the Financial Affidavit even if the response is “not applicable,” “none,” “not in my possession” or another brief explanation.”
If your facts don’t fit the financial affidavit’s tight confines, you can just explain yourself on the supplemental form Additional Information For The Financial Affidavit (Family & Divorce Cases).
How Often Do I Need To Update My Illinois Financial Affidavit?
The Illinois financial affidavit needs to be seasonably updated.
Your Illinois financial affidavit definitely needs to be updated every January after you receive your W2s and 1099s. Your Illinois financial affidavit probably also needs to be updated after you file your taxes (people in the middle of a divorce always seem to take the extension to the October filing date)