Fraudulent Filing of Financial Affidavits
Unfortunately, in some divorces, one or both parties may attempt to hide or misrepresent their assets from the other. However, the recently passed Illinois Marriage and Dissolution of Marriage Act now makes the attempt to provide false information on a financial affidavit punishable by financial sanctions and attorney’s fee awards.
During a divorce, either party is permitted to submit a petition for temporary maintenance or temporary child support. Maintenance is a set payment that may be paid in one or more installments and is intended to help the petitioning party pay necessary expenses and living costs.
The petitioning party must include a financial affidavit that sets forth information about his or her assets and income, which must also be supported by specific documentary evidence, including:
- Income tax returns;
- Pay stubs; and
- Banking statements.
If there is a discrepancy between the sworn affidavit and the supporting evidence, then the other party may file a motion for a hearing on the matter. After reviewing the evidence, the Court will determine whether one of the parties intentionally or recklessly filed an inaccurate financial affidavit.
According to the new law, Courts are now required to impose certain penalties, including, but not limited to, costs and attorney’s fees on parties who try to mislead the other party and the Court as to the amount of their assets. The size of any monetary penalty will depend on the extent of the misrepresentation and the impact on the progression of the case.
Based on the financial affidavit and the supporting evidence, the Court can use its discretion to order temporary maintenance to either spouse. In order to make the determination, the Court reviews a number of factors, including:
- The incomes and needs of each party;
- Both parties’ present and future earning capacities;
- The household’s standard of living;
- The age, physical, and emotional condition of both parties;
- The duration of the marriage; and
- The contributions by the petitioning party to the education and career of the other spouse.
There are no statutory guidelines for calculating maintenance orders, although many Courts have their own procedures. Maintenance orders can also be modified by a Court at a later date, but only upon a showing by one party of a substantial change in circumstances. The Court must also review a series of factors when determining whether a change in circumstances qualifies as substantial. For instance, the Court may take into account a change in employment status or an increase or decrease in either party’s income.
Maintenance and child support orders are an important aspect of any divorce, and have long-term effects on both spouses, as well as any children. If you petitioned the Court for temporary maintenance and suspect the other party of fraudulently filing a financial affidavit in order to mislead the Court, please contact skilled Palatine family law attorney Nicholas W. Richardson to schedule a consultation.