One of the first hearings that may occur in a divorce case is a hearing for child support and postseparation support (temporary alimony). In this hearing a judge will determine the following: the ability of each party to contribute to the support of the children; if one party is a dependent spouse, the ability of the dependent spouse to contribute to his or her own support; the supporting spouse’s ability to contribute to the support of the dependent spouse; and, his or her own support. Thus the judge must hear evidence concerning the income and expenses of both parties and the children. This evidence will be primarily in the form of the parties’ expense affidavits.
The dependent spouse is the spouse seeking child support and postseparation support from the other party. The dependent spouse’s expense affidavit must set out the current expenses for himself or herself and the children. This is based on the accustomed standard of living of the family as of the date of separation. Frequently, the dependent spouse has less money following a separation and accordingly less to spend on support of the children or herself or himself. If this is the case, then the current situation does not reflect the family’s accustomed standard of living.
The dependent spouse will need to obtain statements, bills, cancelled checks, credit card statements or other evidence of each expense over a 12 month period. This documentation is critical as it will be the backup for the figures on the expense affidavit. For each expense item, prepare a file folder with the 12 months of back up receipts or invoices. If you are familiar with Microsoft Excel, you can create a spreadsheet for the 12 months of each expense which will be easy to use in court and very helpful to your lawyer. If you have this backup information it will be very difficult for the opposing side to challenge the expense unless the spending was excessive and/or inconsistent with the family’s prior standard of living. Because some expenses vary in amount over a year, each expense item should be calculated over a period of a year (12 months) preceding the date of separation and then averaged. Thus, if your electric bill varies from $300-$500 per month over the prior year but totals $4,200 for the entire year, the average monthly cost will be $350. This average figure is the figure you will use on the financial affidavit. You will follow this procedure for every itemized expense on the financial affidavit. This is the key to your “bulletproof” expense affidavit. Yes, it is a great deal of work. But you and the children are worth it.
Sometimes, the dependent spouse does not have access to the financial information that is needed to prepare the expense affidavit. In this case you will need, early on, to tell your lawyer that you do not have access to the financial records so that the lawyer can request them from the other side or from the bank or credit card provider.
Some of the itemized expenses on the expense affidavit are in a category called “Regular Recurring Monthly Expenses.” These expenses consist of mortgage payments, utilities, car expenses, insurance and the like. These expenses are for the entire family and are not easily prorated among family members. The second category of expenses is “Individual Expenses.” These expenses consist of items such as uninsured medical expenses, food, clothing, gas, school expenses, camp and more. The cost of these expenses may vary from person to person and typically vary significantly between an adult and child. You must obtain the documentation for each expense to the best of your ability. If you are unable to locate the information necessary to document the expense, and cannot get it from your spouse, you may need to make a good faith estimate of the expense. In this case you should keep a notebook which details how you arrived at the good faith estimate of the expense and what you relied on to make the good faith estimate. The estimate must have a rationale basis: not a guess or wishful thinking. The goal is accuracy.
The worst thing you can do is inflate your expenses and be unable to support the expense affidavit. If the opposing side is able to demonstrate that you have inflated your or the children’s expenses, you will lose credibility with the court and the court may accept the opposing side’s version of expenses (usually considerably less) as valid. Underestimating your expenses can also have potentially devastating consequences and result in a support award in an amount considerably less than is needed. You will need to work closely with your lawyer and usually the lawyer’s paralegal staff who are trained in preparing the expense affidavits. The process will be less costly if you provide the information needed to the lawyer on a timely basis. The goal is a bulletproof expense affidavit.