Financial Disclosure in Divorce: Get it Right!
Published to: client relations, Custody, Divorce, equitable distribution, ethics, Family Law, Harrison County, Unbundling of Legal Services, West Virginia Lawyer - Tips and Techniques
on January 31, 2019 8:16 pm
Leave your thoughts
Below is a draft of the form I have begun having my clients read and sign. “Counting and Collecting the Beans” is not easy, but it is essential. Burt Hunter
IMPORTANT: PLEASE READ CAREFULLY
- I ________________________________________ declare that I have read Mr. Hunter’s instructions for completing my financial affidavit and our “Equitable Distribution Spreadsheet”.
- In regard to marital assets and debts, I understand the basics of the “WV Doctrine Of Equitable Distribution,” especially the fact that the Court will presume that any asset or income generated by the efforts of either party during the marriage and before separation is jointly owned.
- I understand that property I owned before our marriage, or received as a direct gift from a family member or friend, may be my separate property, but there are exceptions. I acknowledge that it is important for Mr. Hunter and me to evaluate claims I make to separate property carefully. So, I must be accurate and honest in discussing such property with Mr. Hunter.
- I also understand that it is my obligation to provide documentation of the unpaid balances of all debts, “secured” and “unsecured”. I know I must provide that information as of “date of separation”, and, to the extent I can, I need to track all of those debts, up to settlement or mediation or trial. If there is a trial, the Court will need that information for a just result.
- This may require calling my creditors, my bank, and my insurance company, or the “plan administrator” for a retirement and visiting the county clerk or assessor.
- I understand the difference between a secured and an unsecured debt. Example of secured debts are car loans and home mortgages. Examples of unsecured debts are credit card debt, unpaid medical bills, overdue utilities, and debts to family.
- I know that my and our disclosures of funds include transactions done on the day of separation and sometimes days, weeks, or months before. (When in doubt, I WILL disclose it to Mr. Hunter. I promise.)
- I understand my disclosure of assets, debts, and income will be under oath and punishable by the Court which is another reason that I must be honest and complete with my lawyer.
- I understand that I may not have all the information to give Mr. Hunter at the time of our first meeting or out big “spreadsheet interview.”
- That may be because my spouse controls the information. But, it is my obligation ferret out and obtain that information, to study the spreadsheet after Mr. Hunter provides me the first draft, and to update and correct it before any mediation or trial.
- I just reread this paragraph, and I commit to doing this. ____________ (initials)
- I absolutely understand and accept that failure to make an honest and full disclosure, to my lawyer, the Court, and the other side may have dire consequences and may interfere with Mr. Hunter’s ability to continue as my counsel.
- I understand that valuation of any automobiles is based on “private party sale value” available online at sites such as Kelly Blue Book, not “retail” or “trade in” values. I know it is my job to obtain those values, based on accurate description of condition and accessories, and to forward or print out those valuations for Mr. Hunter to attach to our disclosure.
- I understand that valuation of any automobile is based on “private party sale value” available online at sites such as Kelly Blue Book, not “retail” or “trade in” values. I know it is my job to obtain those values, based on accurate description of condition and accessories, and to forward or print out those valuations for Mr. Hunter to attach to our disclosure.
- I understand that I must disclose ALL retirement benefits and long-term and short-term savings. And, I understand that if a retirement plan is to be divided, there may be extra costs for something called a Q.D.R.O. (Qualified Domestic Relations Order), per the federal E.R.I.S.A. law.
- I understand the difference between a “defined benefit” and “defined contribution” retirement plan. A “defined contribution plan” exists in an account somewhere (e.g. 401K; I.R.A.). An example of a “defined benefit plan” is the “old-fashioned” “miners’ pension”, which is funded by a stream of contributions, usually by the current work force. It is critical for me to contact the “plan administrator” or my employer’s H.R. or personnel department to get this information!
- I understand that values for “personal property” are “used” valuations, such as by sale via “The Prospector,” Facebook, or a yard sale or auction, and NOT retail valuation. Values of real estate may, by convention, be 60% of the assessment on our tax ticket, or as determined by a certified appraiser, or even by stipulation of the homeowners.
- Examples of personal property are televisions, cars, and furniture. Examples of real estate are a house and lot, fishing camp, farm, or condo. Often, determining their values are critical to my case. I did not just scan this certificate. I read it, absorbed it, and I commit to doing it!
Certified and verified:
This post was written by Burton Hunter