At the beginning of an Illinois divorce or whenever an Illinois divorce is reopened, the parties must exchange financial affidavits with each other.
“(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
The Illinois Divorce and Family law financial affidavit is a standardized form that can be found on the Illinois Supreme Court’s website here.
***Note: I spent hours going over the current financial affidavit, analyzing each line. Two weeks later, the Supreme Court of Illinois changed the standard Illinois financial affidavit. So, my analysis is no longer in order with the current structure of the Illinois financial affidavit. I’ll get around to fixing it sooner or later***
The financial affidavit is a snapshot of your and your spouse’s income, expenses, debts and assets. Furthermore, this “snapshot” is sworn to by each party under the penalty of perjury, a class 3 Felony in Illinois.
Every person who fills out a financial affidavit signs under the words, “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”
As such, the financial affidavit is an excellent place to begin inspecting your spouse’s income, expenses, debts and assets. After all, your spouse just swore that it’s all true.
After a full analysis of your spouse’s financial affidavit, you’ll know what you’ll what additional information you’ll have to ask for in a Notice To Produce, a Marital Interrogatory, a subpoena or a deposition.
In this article, I will walk you through, in order of listing, each item on the Illinois Family Law and Divorce Affidavit and suggest follow up questions, discovery requests and strategies based on your spouse’s answers. So, start from the top of page 1 your spouse’s financial affidavit and through the article noting what you need to ask for based on how they filled the form out.
Supporting Documents on An Illinois Divorce and Family Law Financial Affidavit
After swearing that the below is true, the financial affidavit allows the party to list the supporting documents they’ve attached to the affidavit.
“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 Illinois statute says that they must include the above documents but they don’t say how many years for each. Each county will have local rules as to what is required. For example, Cook County Court Rule 13.3.2(a) reads: “In all proceedings where a…Financial Affidavit is required, each party shall serve upon the other party, together with the Financial Affidavit, copies of the party’s last two (2) calendar years’ filed individual, partnership and corporate federal and state income tax returns, the most recent pay stub showing year-to-date earnings and deductions therefrom, or if the year-to-date information is not provided by the employer, the five (5) most recent pay stubs, and records of any year-to-date additional income and compensation (paid and deferred) not reflected in the pay stubs. Where a party has not yet filed a federal or state income tax return for the prior calendar year, the last filed year’s return shall be served upon the opposing parties as well as all W-2’s, 1099’s and K-1’s received necessary for preparation of the prior year’s return.”
You’ll need at least 3 years of income tax returns because that is the minimum number of years used to determine income for the purposes of support.
“[T]here is no iron-clad rule requiring a trial court to consider only the last three years of income in arriving at net income for child support purposes. At least the three prior years should be used to obtain an accurate income picture. Beyond that, however, it must be left to the discretion of the trial court, as facts will vary in each case.” In re Marriage of Freesen, 275 Ill. App. 3d 97, 103 (1995)
Income tax returns only reflect last years income. To ensure you have this years income, you’ll need current paystubs in order to get a year-to-date income and to verify all the income deductions.
Bank statements are the only way to verify that paystubs and taxable income are the only source of income. Three years of bank statements should be provided for determining average income.
If your spouse provided additional supporting documents then you’re in luck as that has never happened to me in 15 years of practicing family law. But, it really doesn’t matter because your spouse will have to provide additional documents via a Notice To Produce if anything is missing or in error on in their financial affidavit (which you most certainly will find after reading this article)
Do the dates of marriage, divorce and separation match your dates for the respective events?
If the answer is no or unknown, prepare a letter to the opposing counsel requesting an amendment or explanation as to the difference in the dates. Sending a long letter outlining the obvious errors in a financial affidavit is a great way to show opposing counsel that you are paying attention to the details and expect them to do the same.
Does your spouse live with someone else who pays their expenses?
If so, request the roommate/paramour’s info in a Supplementary Notice To Produce. If you don’t get that info, you can subpoena or even depose that person for more information.
Do the children and their birthdates match your understanding of the children’s birthdays?
If the answer is no or unknown, prepare a letter to the opposing counsel requesting information and/or an amendment. Listing wrong birthdates of children is a great “gotcha” question in a custody case.
Does your spouse’s employment, paycheck period and income match their paychecks?
If the answer is no or unknown, prepare a letter to the opposing counsel requesting the information and/or an amendment.
Does your spouse’s tax filing status match their tax returns?
If the answer is no or unknown, prepare a letter to the opposing counsel requesting the information and/or an amendment.
Does your spouse’s dependent exemptions match their tax returns?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Does your spouse’s tax refund or amount owed match their tax returns?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment. Also, check to see if their answer matches 16(k) later in the form.
Does your spouse gross income listed match their tax return?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment. But, they may be listing their income as of the moment of signing. If that’s the case, look at your spouse’s paystubs as well.
Does your spouse’s gross income listed match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Has your spouse filed for bankruptcy?
Ask your spouse for the bankruptcy petition and discharge order in a Supplementary Notice To Produce. Failing that, you can pull that information off of the federal court’s PACER system.
Your Spouse’s Income On The Financial Affidavit
The next section of the form goes over all sources of your spouse’s income…according to them. It’s important to verify each item.
Does your spouse’s regular employment earnings match their most recent paystub?
If it does not, you must inquire as to how they determined their income. This is usually done with friendly correspondence but it may be necessary to depose your spouse in order to determine the “why” of the many issues present in their financial affidavit.
The same verification must happen for all the subsequent entries on the financial affdiavit.
Does your spouse’s overtime match their paystub?
Does your spouse’s commission match their paystub?
Does your spouse’s tips match their paystubs?
Most tips are via credit cards but there are always cash tips. So, the tips shouldn’t match the paystubs, they should be in excess of what the paystub lists to reflect cash tips.
Does your spouse’s bonus match their paystub?
Does your spouse’s pension and retirement benefits match their paystub?
If they are receiving retirement benefits then they have retirement funds which must be disclosed and/or inquired about. Those funds should be listed in section 16(g) of the financial affidavit so verify that there is something listed there if there is income from pension and/or retirement benefits.
Does their annuity income match their tax return?
An annuity is an asset and should be listed somewhere in section 16 of the financial affidavit. Request any documents related to that annuity that your spouse is in possession of or controls.
Does your spouse’s interest income match their tax return?
Taxable interest goes on Schedule B of the 2020 Form 1040. Some interest is non-taxable, though. Tax-exempt municipal bond interest is reported on Line 2a of the 2020 Form 1040. If there’s any interest income you must request the bank accounts which generate that interest in a Notice To Produce.
Does your spouse’s dividend income match their tax return?
Ordinary dividends are reported on Line 3b of your Form 1040. Qualified dividends are reported on Line 3a of your Form 1040. If there’s any dividend income you must request the brokerage accounts in a Notice To Produce. Those brokerage accounts should be listed in section 16(b) of the financial affdavit.
Does your spouse have trust Income?
If there is trust income then the trust issued the beneficiary, your spouse, a K-1. You must request this K-1 from your spouse to verify the income.
Does your spouse receive social security income?
If so, request statements from social security in your spouse’s possession or the bank account where Social Security money is deposited.
Does your spouse receive unemployment benefits?
If so, request documents related to unemployment that are in AP’s possession. Failing that, request the bank account the unemployment benefits are deposited into.
Does your spouse have a non-social security disability benefit?
If so, request documents related to this benefit that are in your spouse’s possession, failing that the bank account the benefits are deposited into.
Does your spouse receive TANF or SNAP benefits?
If so, request documents related to that benefit that are in your spouse’s possession
Are there Military Allowances?
If so, request documents related to those military allowances that are in your spouse’s possession
Does your spouse have investment income?
If so, request documents in your spouse’s possession or control proving the entirety of those investments. When there is any asset as significant as something that generates investment income, you’ll already be asking for it in a Notice To Produce and the standard Marital Interrogatories. It is also possible to subpoen the parties holding those investments. Section 16 of the financial affidavit should list the investments. So, double check that for consistency.
Does your spouse have rental income?
If so, request documents in your spouse’s possession in regards to any rental properties. Section 16(c) of the financial affidavit should contain these properties addresses. You can obtain the deeds for these properties directly off of the Recorder of Deeds website.
Does your spouse have partnership income?
If so, request documents related to the partnership that are in your spouse’spossession. Again, you will probably already be asking for these in the Notice To Produce. Additionally, you can send subpoena to the partnership’s registered agent. Section 16(e) of the financial affidavit should list the partnership as a business interest for further inquiry.
Does your spouse receive income from distributions and draws?
If so, request documents related to those distributions? Distributions from what? You might already be asking for this in the Notice To Produce. Again, Section 16 of the financial affdavit should list the source of these distributions and draws.
Does your spouse have royalty income?
If so, request contracts that govern these royalties. What’s the source of the royalty? Request bank statements where royalties are deposited. Section 16 of the financial affdavit doesn’t specifically ask for royalties but a royalty is a business interest so it should be listed there under section 16(e).
Is your spouse using educational funds?
This means 529 plan disbursements. They’re income but for the benefit of your spouse’s children. Request all 529 accounts in your spouse’s name no matter who the beneficiary is.
Is your spouse receiving maintenance?
If so, request the marital settlement agreement from that divorce that awarded the maintenance. Your spouse should have a copy or you can get a copy from the circuit clerk? Note: If you’re married, your spouse should not be receiving maintenance since the remarriage.
Is your spouse paying child support for children of this relationship?
You should already have the order that established child support. Does child support need to be modified based on the income already listed? Has income changed since the order in a way that would benefit you?
Is there child support for children outside of this relationship?
If so, request the order that established child support. Your spouse should have that order and if they don’t you can request a copy from the circuit clerk or your spouse’s child’s other parent’s attorney.
Did your spouse receive any gifts of money?
If so, request the source of the gifts and the account they were deposited into. Gifts to a divorcing spouse are almost always money from paramours and parents that your spouse will try to characterize as a loan.
Are there other sources of income?
If so, request evidence of the other source of income and the accounts which they are deposited into
Deductions
Total gross income is important but for the purposes of support, the Illinois statute almost always needs to know the net income which is the gross income less mandatory deductions. Mandatory deductions are verified the same way as income, by your spouse’s paystubs.
Does your spouse’s federal deductions match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Do your spouse’s state deductions match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Does your spouse’s FICA (Social Security) deductions match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Does your spouse’s Medicare deductions match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Does their mandatory retirement deductions match their paystubs?
Please note that not all retirement deductions are mandatory. If your spouse put nothing here but they are putting money into a 401k that is fine. But, if your spouse is claiming that non-mandatory deductions are mandatory, you need to investigate or send a letter requesting an amendment. Virtually all non-pension deductions are voluntary. These deductions are getting deposited into an account that should be listed in section 16(k) of the financial affidavit.
Does your spouse’s union dues match their paytubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment. If there’s a union, there’s retirement benefits so check section 16(k) of the financial affidavit for that retirement account.
Does your spouse’s health insurance premiums match their paystubs?
If the answer is no or unknown, prepare a letter requesting the information and/or an amendment.
Do your spouse’s life insurance premiums match their paystubs?
Please note that life insurance premiums ordered to guarantee child support are counted as a deduction. All other life insurance, whether court ordered or not does not count against gross income in determining net income. If such a non-mandatory life insurance premium is included, you need to request more information and/or an amendment.
Is there child support actually paid for a child of another relationship?
If so, request the court order establishing that child support. Does that child support order need to be modified in order to modify your spouse’s net income and thereby increase or decrease your support?
Does your spouse pay maintenance which is actually paid for another case?
If so, request the court order establishing maintenance? Does that maintenance payment need to be modified to be free up more money for your family?
Is there maintenance actually paid in your case?
You should have the court order establishing maintenance. Does that maintenance amount need to be changed based on the now disclosed incomes of the parties?
Does your spouse have expenditures for repayments of debts?
Documents establishing both the amount and the required payments of these debts need to be produced and verified. The debts and their amounts better match Section 14 of the financial affidavit.
Are there foster care payments paid by DCFS?
Ask for documents related to those payments or the bank accounts where they are deposited
Monthly Living Expenses
Please note that expenses that aren’t mandatory deductions aren’t that important in most Illinois divorce cases. Child support and maintenance are calculated based on income and these expenses won’t matter unless you have a non-guidelines case.
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors” 750 ILCS 5/504(b-1)(2) which include “the needs of each party” 750 ILCS 5/504(a)(2)
For child support expenses can be considered in non-guidelines cases as well if “the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors including, but not limited to, one or more of the following:
(A) the financial resources and needs of the child;
(B) the financial resources and needs of the parents;
(C) the standard of living the child would have enjoyed had the marriage or civil union not been dissolved” 750 ILCS 5/505(a)(2)
So, all these expenses only come into play to determine the needs of the party or children in the event that the court awards non-guidelines support.
Even in a non-guidelines divorce case, expenses must be taken with a grain of salt. For example, even if a maintenance payor has extreme expenses, that’s no reason to modify their maintenance obligation. “[A] payor’s voluntary acceptance of nonlegal obligations are not to be considered in deciding whether maintenance should be modified or terminated” In re Marriage of Kuper, 2019 IL App (3d) 180094,
Is the amount of mortgage or rent ridiculous?
Everyone needs someplace to live. We only need to follow up if the amount is ridiculously high or low. We need to request the current mortgage balance, though. That balance should match Section 14. If the balance does not, request an amended financial affidavit.
Is there a HELOC or second mortgage?
If so, you need to request the current mortgage balance. The balance should be in section 14. If not, request amendment.
Are there real estate taxes?
Only inquire if they are excessively high or low. If you care to verify, you can look up the actual taxes on the County Assessor’s site and request an amendment if there’s an error.
Are there homeowner’s association dues?
Only inquire if they are excessively high or low. The actual Homeowner’s association fees can usually be found on the internet in similar real estate listings like Redfin or Zillow
Is there homeowner’s or renter’s Insurance?
Only inquire if they are excessively high or low.
Is there a gas bill?
Only inquire if it’s excessively high. The amount might be high or low due to the time of year.
Is there an electric bill?
Only inquire if it’s excessively high. It might be the time of year.
Is there a telephone bill?
Only inquire if it’s excessively high or low. They might be on someone else’s plan or they might have others on their plan (paramours and/or support from parents)
Is there Cable or Satellite TV?
Only inquire if excessively high
Is there Internet?
Only inquire if the price is excessively high
Is there a water and sewer bill?
Only inquire if the monthly bill is excessively high.
Is there a garbage removal bill?
Only inquire if the amount is excessively high.
Is there a laundry and dry cleaning expense?
Only inquire if excessively high.
Is there a housecleaning expense?
Only inquire if excessively high
Are there regular and necessary repairs to the property?
Only inquire if excessively high or if they don’t list a property in Section 16(c).
Are there pet care expenses?
Only inquire if excessively high. People love pets, especially family law judges who are tired of dealing with humans all day.
Are there grocery expenses?
Only inquire if excessively high
Are there other expenses?
If your spouse lists something, you’d better inquire about it. Specifically, the expenses may be business expenses which are reimbursed. That reimbursement should be calculated as income for the purposes of child support and/or maintenance. Only “nonreimbursed business expenses are deductible to determine net income.” Rimkus v. Rimkus, 557 NE 2d 638 – Ill: Appellate Court, 1st Dist. 1990
Is there a car payment?
Only inquire if excessively high. There better be a car listed in 16(d) of the financial affidavit. If not, request an amended financial affidavit.
Are there repairs and maintenance on the car?
Only inquire if excessively high
Are there insurance and license fees?
Only inquire if excessively high
Are there gasoline expenses?
Only inquire if excessively high
Are there taxi, ride share or train expenses?
Only inquire if excessively high
Is there a parking expense?
Only inquire if excessively high
Are there medical expenses?
Check the next section of the financial affidavit to be sure these expenses are not for the children. If the expenses are large, verify that your spouse has a medical condition.
Is there life Insurance expenses?
Who is the beneficiary on the life insurance? Existing policies can be ordered to stay in place so the client may want to lock these in. “With respect to existing life insurance, provided the court is apprised through evidence, stipulation, or otherwise as to level of death benefits, premium, and other relevant data and makes findings relative thereto, the court may allocate death benefits, the right to assign death benefits, or the obligation for future premium payments between the parties as it deems just.” 750 ILCS 5/504(f)(1)
Are there clothing expenses?
Only inquire if excessively high.
Are there grooming expenses?
Only inquire if excessively high (please be sensitive) as expensive treatments are often to deal with an embarassing issue.
Are there club membership dues?
This is so odd that I always want to know more about the club.
Are there entertainment, dining out and hobby expenses?
This really means going out for drinks. Do these expenses match your spouse’s drinking habits.
Are there newspapers, magazines, and/or subscriptions?
In this day and age there are no subscriptions. But there should be subscriptions to streaming services. Another reason to request an amended financial affidavit.
Are there gifts?
Only inquire if excessively high. Check tax return for gift tax exclusion on form 709. If they didn’t take the gift tax exclusion, ask “why?”
Donations?
Only inquire if excessively high. Check tax return for charitable donations on Schedule A of the IRS 1040 form.
Vacations?
This amount should be separate from the vacation expenses of the children in the next section. So, If the expense of the vacation is excessive, inquire if these are really adults only vacations.
Voluntary Trade or Professional Association Dues?
These expenses are usually paid on an annual basis. Make sure they are amortized as monthly.
Professional Fees?
They’re litigating a divorce. Shouldn’t the divorce lawyer’s fees be there? If not, request an amended financial affidavit.
Are there other expenses?
Always inquire if someone puts down other expenses.
Does your spouse list children’s expenses?
You should know what it costs to raise your own children. Are any of these expenses are off. If so, inquire with opposing counsel why the expenses are listed as they are.
Are there children’s vacation expenses?
Compare expenses for children’s vacations to adult vacations above. Make an inquiry/possible request for amendment.
Are there debts?
We need statements for each debt from the date of separation. That is the usual cut-off for debts to retain a marital character and thus be divisible. Verify the payments from the statements requested.
What is your spouse’s total available income?
Double check your spouse’s math. Send an inquiry and/or request for amendment if the math is wrong or the inputs are wrong.
Your Spouses’s Listed Assets On The Financial Affidavit
Every single asset’s value needs to be verified. Some items cannot be verified (real estate and jewelry) and must be appraised. Put every asset and its value in an equitable distribution spreadsheet. If you do not verify your spouse’s assets’ values, the judge will presume the values are accurate. “[A] financial statement is competent evidence of value.” In re Marriage of Hubbs, 843 NE 2d 478 – Ill: Appellate Court, 5th Dist. 2006
Are there bank accounts?
Request two years of bank statements. You, as a party to your own divorce need to go through each bank statement and not merely rely on your attorneys. Try to identify strange deposits or withdrawals for further investigation.
Are there certificates of deposit?
Request a current statement of the certificate of deposit. Note that owning a certificate of deposit is very weird in a low interest rate environment.
Cash and prepaid debit cards
Compare cash to withdrawals from bank accounts. If there are no withdrawals, inquire if they ever carry cash. Everyone has cash. If there are no cash withdrawals…there is cash income that needs to be investigated.
Are there investment accounts?
Request two years of brokerage account statements. Note that stock options will not be in any account but they are still marital property and must be disclosed.
Is there real estate?
Request all deeds associated with real estate. You can actually just look it up on the recorder of deeds. It’s very important who is on the deed and when. That determines if the real estate is marital and thus divisible in a divorce
Are there any motor vehicles?
Check to see if any of the cars have an actual value beyond the loan. If so, put in the equitable division spreadsheet
Are there any business interests?
Business Interests have contracts, business accounts, business expenses (which are often personal) and inventories. All of these need to be requested.
Life Insurance Policies
If a spouse is the current beneficiary of a life insurance policy, they can preserve themself as a beneficiary post-divorce. Get a copy of all policies as of the date of separation.
Are there retirement benefits?
We only need current balance statements of any existing retirement accounts. Past statements are pointless unless there has been an IRA rollover of a previous account with a non-marital portion. But, we wouldn’t want to know that, so don’t ask.
Is there an income tax refund or taxes owed?
If there is money to be paid or owed on taxes, an accountant let your spouse know that. Request that document from the accountant if it is in your spouse’s possession. If your spouse doesn’t have anything regarding taxes owed, subpoena the accountant.
Are there ongoing lawsuits?
Lawsuits are a public record. Look it up with the circuit clerk. Send the lawsuit’s lawyers a letter stating you might have a marital interest in the lawsuit and they need to keep you apprised.
Are there collectibles?
Ask for a time to get them appraised or at least take pictures of them now.
Transfer or sale of assets greater than $ 1000
There is almost always something that has been sold or given away in the last two years that is worth more than $ 1000. If nothing is listed remind the opposing counsel how rare it is to keep everything they own for such. an extended period of time, especially during a divorce.
Is someone paying health insurance?
Ask that the children’s health insurance expense be isolated and evidence thereof be sent to you. That amount affects the final child support awarded. “The amount to be added to the basic child support obligation shall be the actual amount of the total health insurance premium that is attributable to the child who is the subject of the order.” 750 ILCS 5/505(a)(4)(D)
Is there any additional information?
If all of the boxes in section 16 are full (in any section) ask the opposing counsel if there are additional assets that still need to be listed per # 18 of the financial affidavit.
What’s The Point Of Verifying All This Information If You’re Going To Get The Information Via The Notice To Produce Anyways?
Inconsistencies, errors and lies will all be unconvered via future discovery. The financial affidavit will be amended voluntarily or will be ordered amended by the judge. If the first financial affidavit is properly challenged the second amended financial affidavit’s veracity will always remain in question.
Furthemore, your spouse can pay you for correcting the errors in their financial affidavit. “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” 750 ILCS 5/501(a)
Why Financial Affidavits Must Be Correct From The Very Beginning
Before discovery can be complete with a full disclosure of all verified documents that would corroborate a financial affidavit, there are a lot of issues that must be resolved: temporary child support and maintenance, possession of the house, temporary parenting time, injunctive relief. These matters will all be decided with little to no evidence beyond the financial affidavit.
“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501
So, an affidavit must be correct in order for temporary relief to be accurately awarded by the court. If the financial affidavit is inaccurate, the other party must bring that to the immediate attention of the court for the court to not rely on financial affidavit “on a summary basis.”
If you’re puzzling over your spouse’s financial affidavit in the initial or even final stages of your Illinois divorce, contact us today to schedule a free consultation with an experienced Illinois divorce attorney.