The short answer to this question is yes, most of the time. There are several reasons you want to make sure that the other party has filed a current financial affidavit before your scheduled mediation.
First, there are very few family law issues that we litigate that do not implicate a party’s finances. Even if the only issue being litigated is timesharing, one party may have a claim for a contribution toward their attorney’s fees because of the pending litigation, and therefore, the finances of both parties become relevant. Realistically, though, if you are attending an initial family law mediation (and it is not a modification or enforcement action), there are more financial issues to address than just a claim for attorney’s fees. You may be addressing the division of your assets and debts, establishing child support going forward or back in time, or addressing a claim for alimony.
Being educated on your finances and the finances of the other party in advance of mediation is critical for you to be able to process settlement offers and come to an agreement during the quick pace of mediation. If you are reviewing the other party’s financial information on the day of mediation, you may not feel confident and comfortable reaching an agreement, or you may miss something important.
Second, you will not know what you do not know if you have not seen a financial affidavit. If you have not reviewed the other party’s affidavit in advance, you may not realize until the day of mediation that there is information they failed to disclose that is critical to settlement, which could result in a delay of mediation or a failure to reach an agreement. For example, if the other side files a financial affidavit and lists future pension benefits as an asset, but you did not realize they were accumulating pension benefits before seeing the affidavit, you may not know the value of those benefits and may not be prepared to negotiate those benefits during mediation.
Additionally, you may not know if a dispute exists until you see the other party’s financial affidavit. For example, if a party lists a value for the marital home on their affidavit and it is significantly different than your researched value, it could create a roadblock at mediation. If you know the estimates of value are vastly different in advance, you can obtain an appraisal before mediation.
Third, reviewing your and the other party’s financial affidavit in advance of mediation allows you to prepare in advance for areas where you have a unique perspective, position, or circumstances. If you do not know the total income available to your household(s), the cash available to negotiate with, the financial needs of the children, or to maintain the home, for example, you may not be able to process offers and counteroffers effectively at mediation. Educating yourself allows you to be an active participant in the negotiations.
Finally, if you have not exchanged sworn financial affidavits in advance of mediation, you may be waiving rights you did not realize you even had. Rule 12.540(b), Florida Family Law Rules of Procedure, allows for the court to “relieve a party or party’s legal representative from a final judgment, order or proceeding” if it is determined that a party filed a fraudulent financial affidavit in a marital or paternity case. Notably, most grounds for relief from a judgment must be brought within a year of the judgment or order being entered, but a motion to set aside a judgment based on a fraudulent financial affidavit can be pursued at any time. If financial affidavits were not exchanged before an agreement is reached that is ratified by court order, and the other side misrepresented their finances during mediation to induce settlement, you may have inadvertently limited the relief you could pursue.
In conclusion, obtaining a sworn financial affidavit from the other party and reviewing it for accuracy in advance of mediation should always be part of your preparation for every mediation.
Jessica Felix, Esq.