When your personal life is been turned upside down from a divorce, it is especially difficult to learn the nomenclature of the Illinois court system. The legal world is ripe with words that seem to only apply within the confines of a court case: subpoena, judgment, affidavit, etc.
Your signature will be required many times throughout your divorce. Usually, your signature is necessary to verify facts that help your case. In an Illinois divorce, the verification of facts is usually done via an affidavit.
“An affidavit is a written declaration under oath sworn to before a person with authority under the law to administer oaths.” Brennan v. Kolman, 781 NE 2d 644 – Ill: Appellate Court, 1st Dist., 6th Div. 2002
Illinois Supreme Court Rule 191 illustrates the purpose of an affidavit (although Rule 191 specifically refers to affidavits required in motions for summary judgment which are rare in divorce).
“[A]ffidavits…shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all documents upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.” Ill. Sup. Ct. R. 191
Affidavits And Motions for Temporary Relief In An Illinois Divorce Case
“[T]emporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 5/501(a)(1)
“[A] temporary restraining order or preliminary injunction accompanied by affidavit showing a factual basis for any of the…relief” 750 ILCS 5/501(b)(2)
The affidavit is often sufficient evidence in itself to empower an Illinois divorce court to make a decision. This is because most temporary motions get decided on a summary basis where the affidavits are the only evidence.
“The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” 750 ILCS 5/501(b)
“When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award” 750 ILCS 5/501(c-1)
A temporary order is as a temporary order does. A temporary order can be revoked or modified by affidavit.
“A temporary order entered under this Section…may be revoked or modified before final judgment, on a showing by affidavit and upon hearing” 750 ILCS 5/501(d)(2)
Again, this illustrates why temporary motions require affidavits and can be ruled upon with affidavits substituting for the formal presentation of evidence. Temporary orders can always be undone so the standard of proof need not be as high as evidence required to issue a final order or judgment.
The affidavit is usually superfluous to the actual motion and merely restates the same allegations. For this reason, most motions merely include a signed verification or certification that the allegations are true and correct. This signed verification is an appropriate substitute for an affidavit.
“We find that the petition was not defective because it was certified rather than accompanied by an additional affidavit” In re Marriage of Manhoff, 880 N.E.2d 627, 631 (Ill. App. Ct. 2007)
“A party’s verification of a motion…has been held to be an acceptable substitute for an affidavit under Supreme Court Rule 191” Mosquera v. Mosquera (In re Estate of Mosquera), 371 Ill. Dec. 931, 938 (Ill. App. Ct. 2013)
Other Instances In Family Law Where Affidavits Are Required In Illinois
Petitions for interim and final attorney’s fees require affidavits in an Illinois divorce case.
“All petitions for or relating to interim fees and costs under this subsection shall be accompanied by an affidavit as to the factual basis for the relief requested” 750 ILCS 5/508(a)
“No final [fee petition] hearing the written engagement agreement is attached to an affidavit of counsel that is filed with the petition or with the counsel’s response to a client’s petition.” 750 ILCS 5/508(c)(2)
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)
A divorce proceeding will fundamentally affect the lives of the parties and their children. So, my personal practice is to require an affidavit verifying almost everything that my office files. If there’s a fact that I or my staff do not personally know of, I require a signature and attestation from someone who is familiar with the alleged facts. I will not just shrug and hope I’m right when it comes to the facts of my client’s divorces.
The Financial Affidavit In An Illinois Divorce
Every divorce in Illinois requires a financial affidavit be filled out (unless waived).
“In all [divorce] pre-judgment proceedings, 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.” Cook County Rule 13.3.1(a)
There is only one financial affidavit form for all of Illinois.
“One form of financial affidavit, as determined by the Supreme Court, shall be used statewide. The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements. Unless the court otherwise directs, any affidavit or supporting documentary evidence submitted pursuant to this paragraph shall not be made part of the public record of the proceedings but shall be available to the court or an appellate court in which the proceedings are subject to review, to the parties, their attorneys, and such other persons as the court may direct.” 750 ILCS 5/501(a)(1)
The financial affidavit is used as the basis of determining a party’s income, expenses, assets and liabilities. However, a financial affidavit should be used as a checklist that is later verified and even challenged should questions arise.
“Upon motion of a party, a court may hold a hearing to determine whether and why there is a disparity between a party’s sworn affidavit and the supporting documentation. If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney’s fees”
A financial affidavit cannot stand on its own in an Illinois divorce. If there are questions as to a financial affidavit, the affiant must be subject to cross-examination.
“[T]he court may not consider one party’s affidavit when the opponent has been deprived of the opportunity to cross-examine regarding that affidavit.” In re Marriage of Kocher, 668 NE 2d 651 – Ill: Appellate Court, 4th Dist. 1996
Does An Illinois Affidavit Need To Be Notarized?
An affidavit has to be sworn to. In Illinois, swearing to an affidavit can be done by “certifying” the affidavit. A pleading will often come with an affidavit certifying that the pleadings allegations are true.
“Any pleading, although not required to be sworn to, may be verified by the oath of the party filing it or of any other person or persons having knowledge of the facts pleaded…If any pleading is so verified, every subsequent pleading must also be verified, unless verification is excused by the court. In pleadings which are so verified, the several matters stated shall be stated positively or upon information and belief only, according to the fact.” 735 ILCS 5//2-605
An example of such a certification can be found below.
Under penalties as provided by law pursuant to 735 ILCS 5/4-109, I certify that the statements set forth in this instrument are true and correct except as to matters therein stated to be on information and belief, and as to such matters, I certify that I verily believe the same to be true.
Dated: ________________ ______________________________
An Illinois affidavit probably does not need further notarization.
“Neither Rule 191(a) nor Rule 315(b) refers directly to notarization or oaths of averment or any other attestation requirement necessary to render the subject document an ‘affidavit.”‘ Roth, 202 Ill.2d at 498, 270 Ill.Dec. 18, 782 N.E.2d 212 (Kilbride, J., concurring in part and dissenting in part).
Still, as an Illinois divorce attorney, if I don’t know the affiant, I’m having the affidavit notarized.
What Happens If Someone Lies On An Affidavit During An Illinois Divorce
The point of an affidavit is to have someone swear that a set of facts are true. If those facts aren’t true, there will be serious penalties.
“Affidavits made in bad faith. If it appears to the satisfaction of the court at any time that any affidavit presented pursuant to this Section is presented in bad faith or solely for the purpose of delay, the court shall without delay order the party employing it to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him or her to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.” 735 ILCS 5/2-1005(f)
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.”, Ill. Sup. Ct. R. 137
The penalty could be denying the relief the affiant is seeking, thus obviating the whole point of going to court. No matter what, an affiant caught lying will pay attorney’s fees for any efforts spent in uncovering that dishonesty.
If you’re busy signing affidavits for your Illinois divorce, you need to know the import of what you are signing. Contact my Chicago, Illinois family law firm to discuss your Illinois divorce case with an experienced divorce lawyer.