UPDATED: Amendments to Family Law Rule Improves Financial Privacy in Some Divorces

New Rule 12.285

On September 7, 2023, the Florida Supreme Court announced amendments to Florida Family Law Rule of Procedure 12.285 related to mandatory financial disclosure requirements.  Under previous versions of the rule, parties were required to file and serve their financial affidavits, with the only exception being simplified dissolutions of marriage with no minor children and no support issues, which are rare.

Under the new Rule 12.285, the parties may agree to forego filing their financial affidavits with the court.  Instead, the parties must file a joint verified waiver of filing financial affidavits.   According to the new rule, in the joint verified waiver the parties must acknowledge the following:

A.  that evidence of their current or past financial circumstances may be necessary for future court proceedings;

B.  they each have provided the other with a fully executed and sworn financial affidavit in conformity with Florida Family Law Form 12.902(b) or 12.902(c), as applicable;

C.  that the responsibility to retain copies of all affidavits exchanged rests solely with the parties;

D.  that the waiver only applies to the current filing and does not automatically apply to any future filings; and

E.  that the waiver may be revoked by either party at any time.

Rule 12.285(c)(2), Florida Family Law Rules of Procedure.

Thus, according to the new rule, the parties must still provide each other with completed and sworn financial affidavits, but they are not necessarily required to file them.  They must also ensure that they have properly retained copies of the exchanged affidavits among themselves as the court will not have copies to maintain.  While the new rule was announced on September 7, 2023, it does not become effective until November 1, 2023.

Limited Application of New Rule 12.285

While the new 12.285 could apply to any case, realistically speaking if your matter is contested and the judge is having to decide financial matters, whether temporary support during your divorce, or resolving financial issues like alimony, child support, etc. at a trial, both parties will have to file financial affidavits so the court can review and weigh that evidence.  It is also going to be vital to ensure that the financial affidavits are part of the trial court’s record if the matter ends up before the appellate court.  Failure to include financial affidavits in the record on appeal could very well result in an unsuccessful appeal due to an incomplete record.

So, in what circumstances will the new 12.285 apply?  Collaborative divorces are a primary candidate for 12.285’s financial affidavit filing waiver.  Additionally, uncontested divorces are also likely to take advantage of the new rule, as they don’t require court intervention to reach a resolution.  Another scenario that could apply is contested divorces that are able to reach a resolution at mediation or at any point before court intervention is required.  Importantly, however, the parties would have to agree to simply exchange completed and sworn financial affidavits during the mandatory disclosure process and wait to see if filing them becomes necessary.

Why Does This Matter?

Financial affidavits are incredibly detailed documents, containing every facet of a family’s financial standing, including incomes, all debts, monthly payments to creditors, monthly bills, and all assets such as real property, investment and retirement accounts, and jewelry, to name just some of the required items.  Filing a financial affidavit makes it part of the public record, accessible to anyone who would seek to view it.  Many individuals value their privacy and would prefer not to have that much of their financial life placed into the view of the public.  The new Rule 12.285 provides a way to avoid so much public financial exposure.

UPDATE:  Affidavit of Income For Child Support; Standard Notice of Verified Waiver of Filing Financial Affidavits

Since the revisions to Rule 12.285, discussed above, which permitted parties to waive the requirement of filing financial affidavits, the Florida Supreme Court has created a new form to address a shortcoming in the new rule.  Financial affidavits are used to determine parties’ incomes in order to calculate child support.  Without financial affidavits filed, the court does not have a basis to ensure child support is being calculated correctly.  To remedy this problem, the Florida Supreme Court created a new form, the Affidavit of Income for Child Support.  This form is limited to just the financial information needed to calculate child support and is therefore less invasive than the standard financial affidavit, which encompasses every aspect of a person’s financial life.  As a part of these revisions, the Florida Supreme Court also implemented a standard form for the Notice of Joint Verified Waiver of Filing Financial Affidavits, which the Court had previously declined to adopt.

Thus, there is now a standard form for the Notice of Joint Verified Waiver of Filing Financial Affidavit and for the new Affidavit of Income for Child Support to guide parties through this process.

If you have any questions about how best to maintain your financial privacy in a divorce, please click here to schedule a consultation from the convenience of your computer or mobile device.