Financial Affidavit


#1

Carolinagirl,

Based solely on what you’ve said, it sounds like your former husband is going to have an uphill battle. However, his claim will probably only be dismissed if you’ve asked the court to dismiss it in your reply to his counterclaims. You’ll need to consult with your lawyer about that.

In completely a financial affidavit, be sure that any of the amounts that you list can be proven by the appropriate documentation (bills, receipts, etc.). Talk to your lawyer about specific items that you should include for your case.

It sounds like you are on the right track, and have been following the agreement accordingly.

Thank you for using our website! Best wishes to you!

Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
NCdivorce.com
email: sstanback@rosen.com

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

I have been working on filling out my financial afidavit. But I have a couple of concerns. Since I assumed all the debts upon our divorce and did not think my ex would give me any problems with our agreement I consolidated my charge accounts into a single account with a lower interest rate and at my ex husband’s request I had the house refinanced in my name. On the form they ask what debts I assumed and what the balance was at our separation and what the current balance is. Well - since I consolidated, the balances on those accounts are zero but I am still carrying the debt. Also in order to refinance the house, I had to pay off a second mortgage my ex used to buy a truck with. The amount was incorportated into the new house payment. So I am still paying for this debt even though the second mortgage account balance is zero. How do I show this on the form? Can I do an explanation and will the judge consider this when looking at the financial afidavit? Also - when I am finished with the afidavit - should the amount of money I expend each month be more, less or somewhat equal to the amount of income I receive monthly?

Thanks so much - you have been such a great resource. I really appreciate your advice.

Carolinagirl


#3

Dear Carolinagirl:

First, put EVERYTHING on your financial affidavit. If there is not a space for it, make one. Attach additional sheets, etc. Your attorney should be able to help you with this.

Second, if your spouse is asking for the separation agreement to be set aside, and if it is, it may benefit you in the end because he would then be liable for half of all the debts which you are now paying.

Finally, it sounds like he does not have “clean hands,” meaning that what he is asking for is an equitable remedy and he must first be following the agreement in good faith. Best of luck.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

Thanks for the information. However, I was wondering - is it common for an agreement to be set aside? If it is set aside is the property part of it “set aside” as well (i.e. the house, furniture, etc…). I have had the house refinanced in my name and it has been quit-claimed with the courthouse in my name. My lawyer said that once property was settled - it could not be changed. Is this true? My ex’s lawyer is stating that since he did not get a lawyer to look over the agreement before he signed it that it should be set aside. He had ample opportunity to have a lawyer look at it and he chose not to. He read over it in my lawyer’s office and made one minor change and then signed it. He was not forced to do so. He was anxious to get out of town because everyone knew he was cheating on me and he was embarrassed. The agreement was written exactly as he and I had agreed to settle our property. His claim now is he only thought he had to follow it for a year. However, he agreed to a 5% increase in my payment each year. That to me indicated that it was for long term.

Thanks for your help. I appreciate any information you can help me with. Our court date is this month and I am feeling scared and unsure.

Carolinagirl


#5

Dear Carolinagirl:

First, it is perfectly normal to feel anxious, scared, and unsure when you have a pending court date. No matter how good your attorney is, they are not fortune tellers and can never tell you how anything will come out in court, although they can look at law and previous cases and made educated predictions.

That said, it is rare for an agreement to be set aside. The totality of the circumstances surrounding the signing (execution) of the agreement must be reviewed by the court. Also, it is ununusual for executed portions (parts that are already done or performed) to be changed if the agreement is litigated over.

No matter what happens, you will be alright in the end. Just keep your head up. Best of luck - let us know how it turns out for you!

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#6

It’s me again!! Thanks so much for the information! You have made me feel a little easier about my situation. I had an appointment with my lawyer last week and he said that he had not received a response to our request for a financial statement since our request this past April and that so far my ex has not provided any information to support his countersuit against me to set aside our agreement. I was wondering - does he have to send this information to us before the court date this month (28th) or can he just show up with it on the day of our hearing? I have provided all the financial info to my lawyer and he said that if they don’t support their claim that by law, it will be thrown out. Also, I am supposed to get my check from my ex by the 1st of the month, this month he held my check for 8 days in order to force me to do something he thought I should do - is this legal? I have bills due on the 5th and had to borrow money from my savings to pay them. Should this be brought out to support my request for garnishment of his wages?

Thanks & God Bless!
Carolinagirl


#7

Carolinagirl,

It sounds like your former spouse is not complying with the local and state rules of court. Generally, no, a party can’t just show up in court with a financial affidavit that has not been submitted to the other party in a timely manner. I imagine your attorney will use this as one of the basis for dismissing your ex’s claims, since he has had plenty of time to get it completed and submitted to your attorney.

As far as the monthly payments, if your former spouse is not complying with a court order which states when he is supposed to make the payment, you do have the right to bring him before a judge, and ask the judge to hold him in contempt of court. Talk to your attorney about the specifics of your case. It is not legal for him to withhold a court-ordered payment to coerce you into performing some task. And yes, you should tell the judge about his actions, and the problems his delays have caused you.

Take care and best wishes to you!

Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
NCdivorce.com
email: sstanback@rosen.com

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#8

We went to court today and presented our information to the Judge. The judge asked a few questions and then decided to “take our case into consideration.” He asked my ex’s lawyer to provide to law to support her claim in writing to him in 3 weeks. They claim that he thought our agreement was temporary (but he agreed to pay till I die or get married and to a 5% increase each year - doesn’t sound like he was thinking temporary to me). The judge seemed concerned with what law they were basing their request on. What does it mean when the judge “takes it into consideration” and will we have to go back before the judge or will he just make a decision and inform us.

Thanks!
Carolinagirl


#9

Dear Carolinagirl:

Generally, a judge takes a case “under advisement” or “into consideration” when they need time to think about it, review the exhibits, review the law, and check on what the attorneys said about the law. Generally, the judge will let the attorneys know when he completes his decision and will call them only back into court to obtain the ruling and type up a judgement. You should not have to go back to court.

The worse part is waiting for the judge to give his ruling after you think that he is going to rule right in the courtroom. Thank you.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#10

You are so right about the waiting after you think you are going to get your ruling that day!! I was very disappointed that a decision was not made that day. Now I have to wait longer to see what is going to happen. Do you know of a law that says that an agreement should be set aside if it appears to be one-sided? That is one of his complaints - but it is written exactly as he said he wanted it to be when we separated. Now he is in a “pinch” for money and he wants to change things even though he makes about $5000 more a year now than he did then. If the judge does set it aside - how will this affect the property settlement part of our agreement?

Thanks a million!!
Carolinagirl


#11

Carolinagirl,

Generally, agreements are upheld by the court unless the person asking to have it set aside can show they were incompetent, or under duress, if the agreement is against public policy, or it otherwise “shocks the conscience” such that the court must set it aside. Based on what you’ve already told us, it doesn’t sound like any of those will be at issue.

Your property settlement may not be affected at all. That really depends on how your agreement was written, and if the various provisions are dependent upon each other. Talk to your attorney about that issue to be sure.

Good luck!

Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
NCdivorce.com
email: sstanback@rosen.com

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#12

Well - I’m back again!! As of my last post my ex and I had been to court and the judge asked his lawyer to submit a brief to him to support the laws that she was using as the basis for my ex’s claims. He also wanted supporting cases to help substantiate their claim. He felt my lawyer had supplied the information at the hearing and told him it was up to him whether or not he submitted anything additional. This was all due to the judge by 9/18. My lawyer had set a court date for us to go back to court for the hearing to get the judge’s decision. My lawyer called today to say that he had gotten a copy of the information my ex’s lawyer had sent to the judge and it was filed as an answer. It did not provide any laws or cases to support their claims. It only repeated his prior claim that the agreement is unfair to him and that it should be set aside. My lawyer submitted additional research showing laws and cases to support our case. He lawyer suggested that we cancel our court date and let his lawyer make arrangements for us to return to court.

My first question is - since his lawyer did not provide what the judge asked for - will it affect how he makes his decision? Should he decide to throw it out since he did not receive what he requested? Secondly, what is the strategy for letting my ex’s lawyer make arrangements for us to return for the hearing. I am a bit confused and any help you can provide will be greatly appreciated. Thanks so much for all the great information you provide for us who are treading these waters cautiously and for the first time.

carolinagirl


#13

Dear Carolinagirl:

I am sorry this was not answered sooner, but we cannot tell you what will happen in trial, only what has happened in previous trials that are similiar. Please let us know how it went. Best of luck.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#14

My ex has threatened to reduce the amount of money he sends me each month. My lawyer suggested that I have his wages garnished so I can be sure to get the proper amount each month. We filed a suit for breech of contract and to request garnishment of his wages. He is countersuing to trying to get the amount reduced. He has asked for our agreement to be set aside by the courts. I assumed all debts when he left our marriage (for another woman) so he was debt free. He has not had a decline in his salary (it has actually increased). Our lawyer put in our agreement that I would receive a certain amount of money for child support and the other amount was “not to be considered alimony” I think he called it family support. Do you think he has much of a chance of changing our agreement? He has breeched the agreement on 4 or 5 different areas and is behind about $3000 on his payments. I have followed the agreement to the letter and have not breeched it in any way. We have a hearing coming up in August to have the judge decide if it will go to trial. Do you think the judge will be more likely to dismiss his countersuit or to take it on to trial?

Also I have to fill out a finanial affidavit for our upcoming hearing. Are there any tips you can give me for filling this out? Are there any things people often forget or do incorrectly?

Thanks for all your help. I am really concerned about this stuff and I am afraid that I will end up on the “wrong end of the stick” and that he will come out on top.