Opinion
09-15-2016
IN RE SUPREME COURT COMMITTEE ON CHILD SUPPORT—AFFIDAVIT OF FINANCIAL MEANS
The Supreme Court Committee on Child Support proposed a new Affidavit of Financial Means to the court, revised and updated to provide more pertinent information to the parties and the courts in matters involving family support than the current affidavit provides. By per curiam dated April 14, 2016, the court published the proposed affidavit for written comments due to the court by May 20, 2016.
The court requested that the committee review the comments submitted and, taking those into consideration, to make a final recommendation to the court. The committee's final recommendation is to adopt the proposed affidavit with one change suggested in the comments, to add lines at the bottom of each page for the litigants and, if represented, their attorneys, to initial.
The court accepts the committee's recommendation and adopts the new affidavit, with that one change, effective October 10, 2016. The new Affidavit is attached.
RECOMMENDATION TO THE SUPREME COURT OF ARKANSAS
FROM THE SUPREME COURT COMMITTEE ON CHILD SUPPORT
IN RE: ADMINISTRATIVE ORDER NO. 10--AFFIDAVIT OF FINANCIAL MEANS INTRODUCTION
The Supreme Court Committee on Child Support proposed a new Affidavit of Financial Means to the Court, revised and updated to provide more pertinent information to the parties and the courts in matters involving family support than the current affidavit provides. By per curiam order dated April 14, 2016, the Court published the proposed affidavit for comment, with written comments due to the Clerk of the Court on May 20, 2016. The Clerk received four letters in response. The Court requested that the Committee review the comments and make a final recommendation, taking those comments into consideration. DISCUSSION
The Committee met on June 24, 2016, to review the comments. Of the four letters submitted, three of them supported the proposed affidavit, with one suggestion made for a formatting issue. In the fourth letter, the writer commented positively to one change and made seven suggestions for other changes. The Committee discussed each and every suggestion. Some were for changes the Committee had discussed specifically in the drafting stage. Some were for changes to things the Committee had done by design or had opted not to do. The Committee adopted one of the suggestions: putting lines at the bottom of each page for the litigant and the attorney, if he or she is represented, to initial. The affidavit was amended accordingly. RECOMMENDATION
After considering the Comments submitted to the Court, the Committee respectfully recommends that the Court approve and adopt the attached Affidavit of Financial Means, as amended.
Thank you.
Respectfully submitted,
/s/_________
Mackie Pierce
Circuit Judge
Chair of Child Support Committee
July 14, 2016
Date IN THE CIRCUIT COURT OF __________ COUNTY, ARKANSAS
(Domestic Relations Division) ___Division __________
Plaintiff v. __________
Defendant Case No. ___DR__________
AFFIDAVIT OF FINANCIAL MEANS
Name:__________, being duly sworn, says under penalty of perjury, that he/she has prepared or approved this financial statement, and that the following information and attachments (including income verification as required by page 7) are complete, true, and correct. __________
Date __________
Signature Subscribed and sworn to before me on this ___ day of __________ 20___. __________
Notary Public My commission expires: __________.
MY INCOME
| 1. | How often are you paid?___ weekly___ bi-weekly (every two weeks—26 times a year)___ monthly___ bi-monthly (twice a month-24 times a year)___ other -Explain (attach an exhibit if necessary): |
| Net Pay: (Take-home after allowable deductions)$__________ |
|---|
NET PAY WORKSHEET
(If more than one employer, fill out and attach multiple copies of this worksheet).
| EMPLOYER:Address: Telephone #: | |
| 3. Gross Wages per pay period: | $ |
| ALLOWABLE DEDUCTIONS UNDER STATE LAW | ========= |
| A. Federal Income Taxes Withheld: | $ |
| B. State Income Taxes Withheld: | $ |
| C. F.I.C.A. (Social Security) or Railroad Retirement: | $ |
| D. Medicare: | $ |
| E. Health Insurance (only the portion paid for children in this caseas required by page 7): | $ |
|---|---|
| F. Court-ordered child support for other children notinvolved in this current case. (For example, children froma previous relationship or marriage): | $ |
| G. TOTAL Allowable Deductions | $ |
| 3.H Subtract TOTAL Allowable Deductions from Gross Wages= NET PAY | $ |
|---|
THE FINAL NUMBER IN THIS BOX BELONGS ON PAGE 1 UNDER "NET PAY"
| If you pay support for children not involved in this case in a form otherthan payroll deduction, then you should attach the child support orderand proof of payment as an exhibit to this affidavit. |
|---|
OTHER INCOME
| 4 | Other income: | Amount: | Source | Frequency |
| 4.1 | Bonuses or incentive pay notreflected on page 2: | |||
| 4.2 | Other court-ordered incomesuch as alimony/child supportpaid to you: | |||
| 4.3 | Payments from a settlement orannuity: | |||
| 4.4 | Regular gifts from relatives orfriends: | |||
| 4.5 | Investment income such as rentpayments to you: | |||
| 4.6 | Stock dividends or bondpayments: | |||
| 4.7 | Regular payments to you or onyour behalf from a Trust: | |||
| 4.8 | Other: | |||
| 4.9 | TOTAL OTHERANNUAL INCOME: | $ |
|---|
OTHER AVAILABLE FUNDS
| 5 | ASSET | AMOUNT | SOURCE |
| 5.1 | Cash on hand, and in bankaccounts: | ||
| 5.2 | Trust fund assets held on yourbehalf: | ||
| 5.3 | Stocks, bonds, mutual funds: | ||
| 5.4 | Other (i.e. 401-K, retirement, etc): | ||
| 5.5 | TOTAL: | $ |
|---|
MY CURRENT MONTHLY EXPENSES
| 6. | Expense: | Amount: | Expense: | Amount: | |
| a. | Rent/house payment | $ | n. | Health Insurance | $ |
| b. | Gas, water, trash, &electricity | $ | o. | Non-covered medical(including medicine) | $ |
| c. | Telephone | $ | p. | Life insurance | $ |
| d. | Internet | $ | q. | Car payment | $ |
| e. | Media Services, i.e.Cable/Satellite, etc. | $ | r. | Car Insurance | $ |
| f. | Child care | $ | s. | Car fuel andmaintenance | $ |
| g. | Food | $ | t. | Lawn care | $ |
| h. | Union dues | $ | u. | Charitable giving | $ |
| i. | Pension plan | $ | v. | Household Expenses | $ |
| j. | 401(k) payments | $ | w. | Dry cleaning | $ |
| k. | Garnishments | $ | x. | Other: | $ |
| l. | Cigarettes | $ | y. | Other: | $ |
| m. | Alcohol | $ | z. | TOTAL: | $ |
Place a check mark by all expenses which you are not currently paying.
MINOR CHILDREN
| 7. | Number of children: | |
| a. | Number of minor children I have with opposing party: | # |
|---|---|---|
| b. | Number of other minor children I have: | # |
| c. | Names of minor children involved in this case: | AGE |
| 1. | ||
| 2. | ||
| 3. | ||
| 4. |
CREDITORS & DEBTS
8. Debts in the names of BOTH PARTIES are:
| Creditor: | Total amount owed: | Monthly payment: | |
|---|---|---|---|
| a. | $ | $ | |
| b. | $ | $ | |
| c. | $ | $ | |
| d. | $ | $ | |
| e. | $ | $ | |
| f. | $ | $ | |
| g. | $ | $ | |
| Totals: | $ | $ |
| Creditor: | Total amount owed: | Monthly payment: | |
|---|---|---|---|
| a. | $ | $ | |
| b. | $ | $ | |
| c. | $ | $ | |
| d. | $ | $ | |
| e. | $ | $ | |
| Totals: | $ | $ |
| Creditor: | Total amount owed: | Monthly payment: | |
|---|---|---|---|
| a. | $ | $ | |
| b. | $ | $ | |
| c. | $ | $ | |
| d. | $ | $ | |
| e. | $ | $ | |
| Totals: | $ | $ |
| Summary of Debts: | Total Owed: | Total Monthly Payments: | |
|---|---|---|---|
| a. | Joint Debts: | $ | $ |
| b. | My Debts: | $ | $ |
| c. | Other Party's Debts: | $ | $ |
ACKNOWLEDGEMENT OF
RESPONSIBILITIES AND CONSEQUENCES
I, __________understand that I must comply with the following. I acknowledge and agree to each provision by initialing each paragraph below. ___Both parties must complete and exchange this seven-page affidavit by providing to opposing counsel or pro se litigants within five days before hearing. ___Both parties must supply the original notarized affidavit to the court. ___ If I am employed, I must attach copies of my last three paystubs to this affidavit. ___ If I am self-employed, I must attach copies of my last two federal and state tax returns, including all schedules, to this affidavit. ___ Before each court hearing where financial matters are at issue, I will review this document and provide updated information to the other party and to the court. ___ I understand that the cost of dependent health insurance coverage is the difference between self-only and self with dependents or family coverage or the cost of adding the child(ren) to existing coverage. ___ I understand that failing to comply with these provisions, or deliberately attempting to mislead the court or the opposing party, may result in my being held in contempt of court, being fined, being ordered to pay attorney's fees, and/or being sentenced up to 6 months in jail, and that serious violations can result in prosecution for felony perjury—punishable by 3 to 10 years in prison. __________
Date __________
Signature I certify that I have reviewed this affidavit with my client and advised him or her of the importance of providing true, correct, complete answers and the required exhibits. __________
Date __________
Attorney Form Revised ___/2016 Stacey Pectol
Clerk of the Supreme Court
ATTN: Administrative Order Number 10
625 Marshall Street, Little Rock, AR 72201 RE: Draft Affidavit of Financial Means Dear Ms. Pectol, I am writing in strong support of the new draft Affidavit of Financial Means (AEM) that is up for comment until May 20th. It was clearly drafted with practicality, clarity, and ease of use in mind. As a Circuit Judge who hears primarily domestic cases, I can attest that the new draft addresses all of the concerns I have had over the years. I'll list some highlights below: 1. Moving the notarized signature to the front page serves multiple purposes. First, approximately half of the AFMs submitted to me are not notarized. Putting it on the front makes it more likely to be completed. Second, clarifying on the front page that this document is sworn under oath gives even more incentive to take it seriously and provide correct information. 2. The old form was very confusing as to proper deductions and coming up with the true net income. The new draft makes it much simpler to calculate, offers clear instructions, and puts the accurate net income unambiguously front and center. 3. The modernization of the "monthly expenses" page has been sorely needed (i.e., the old form refers to "fire insurance"), and will provide a much more accurate picture of actual expenses. The addition of cigarettes and alcohol as separate categories is significant as well. 4. The Acknowledgement section on page 7 will be valuable in ensuring that the parties provide appropriate supporting documentation and take the necessary time to fill out the paperwork honestly and completely. 5. Requiring attorneys to certify they have gone over the form with their clients and advised them of the importance of the form will dramatically improve data quality as well as the preparedness of attorneys for trial! I can't tell you how many times I have watched the blood drain from attorneys' faces because they were so surprised by their client's answers or, conversely, at how inaccurately their clients had filled out the form. 6. By way of slightly improving the form, it appears that at some point in drafting, there was a margin issue which, presumably, could easily be corrected where the table of debts bleeds over onto page 7. I suggest that this be corrected for ease of use as well as professional appearance. Thank you for working on this very practical approach, and I look forward to seeing the new forms in court. Sincerely, /s/
Robert Herzfeld
Circuit Judge April 20, 2016 Ms. Staccy Pectol, Clerk
Supreme Court of Arkansas
Attn: Admin. Order No. 10
625 Marshall St.
Little Rock, AR 72201
BY FIRST CLASS MAIL
RE: IN RE ADMIN. ORDER NO. 10 AFFIDAVIT OF FINANCIAL MEANS PER CERIUM OPINION APRIL 14, 2016 Dear Ms. Pectol: I am writing today to express my great support of the changes to the Affidavit of Financial Means ("AFM") as recently revised and submitted for comments as per the above-styled opinion. I am a fairly new attorney, having been in practice a little over two years, with a small firm in Benton. Approximately 75% of the work I do is in domestic relations, adoption, and guardianship cases. I am a frequent user of the AFM and very familiar with its use in both settlement negotiations and court proceedings. I support the changes to the AFM for many reasons. Firstly, moving the signature and notary area to the front makes it easy to sec if the person has actually completed that portion. Many times, people fill out the AFM and then fail to sign the document, which causes issues if not caught before court. Next, the revisions to the "My Income" section, removing the second "allowable deductions" and "other deductions" sections clears up that substantially. Many, many times in practice people manage to double up on the deductions, in part I believe, because those two sections are listed twice in the document. This is so incredibly confusing for clients, so this revision helps greatly! Additionally, putting the "Net Pay Worksheet" on the second page is a wonderful change. In the old version, it was several pages back in the document, which always lead to confusion. This newly-placed and clearly-delineated worksheet is clear to understand, defines the court-ordered child support section nicely, and has an explanation section at the bottom of the page that makes it very clear what is and is not included in pay and payroll deductions. Moving ahead to Page 3, the "Other Income" section gives good examples of what might be included. The old form did not have these, which caused people to sometimes forget about them or even intentionally leave them out and plead ignorance. Income is different from other funds available to a person, so making those sections separate is a great step to even more clarity. Additionally, making the "My Current Monthly Expenses" table on Page 4 larger makes it so much easier to complete. The current form crams the same table onto half a page, which makes the numbers so small that it's difficult to complete the table where it is legible. I was pleased, as well, to see that the informational table about the parties was removed (formerly on page 4 of 7 in the old version). Sometimes these parties have been divorced for years, separated for years, or they are parties who would never have known the information about the other party at all. Taking this section out just saves me time, and truly, this section was almost never used in my practice. Also, changing the debt sections on Page 7 to "my name" and "name of the other party" instead of "Plaintiff and "Defendant" clears these sections up quite nicely. A lot of times, even with the parties names listed on the case, the party completing the form still does not know who the Plaintiff and Defendant are! Finally, the last page is, in my opinion, the best change made to the document. Clients rarely understand that the document is necessary to set child support and spousal support. They sometimes feel like the court is just being nosy, the other party's attorney is asking intrusive questions by sending an AFM with interrogatories, and that this personal information cannot possibly be needed for the court to just set support. Having this information on the back easily explains the reasons the AFM is needed and lets the party know that the other party has to complete one as well, This explanation section also clearly tells the client that three paystubs or two tax returns, as applicable, are to be submitted with the form as well, As a family law and probate practitioner, I wholeheartedly support the changes made in this new version of the AFM. Thank you for your time and for allowing the comment period. If you should have any other questions in this regard, please do not hesitate to give me a call. Sincerely, /s/
Lori D. Howard
Associate Attorney Sean T. Keith
Andrew R. Miller
Stephen W. Butler
Mary M. White Schneider
Kristin L. Pawlik Tom J. Keith
Of Counsel Victoria Hargis Bruton
George M. Rozzell
John E. Beareis
Katelyn M. Eaves
Mason L. Boling
Mary E. Buckley
Jenna R. Fogleman April 20, 2016 Stacy Pectol
Clerk, Supreme Court of AR
Attn: Admin. Order No. 10
Justice Bldg.
625 Marshall St.
Little Rock, AR 72207 Dear Ms. Pectol:
I have had an opportunity to review the proposed revised Affidavit of Financial Means, and I whole heartedly support the revisions. This clears up many of the previous AFM's less than clear instructions to the clients that are filling these out. In particular, the acknowledgment of understanding what they are providing with the listed potential consequences will make this a more meaningful document and will cause the attorneys providing this information to be more thorough,
Sincerely,
/s/
Mary M. White Schneider
Keith, Miller, Butler,
Schneider & Pawlik, PLLC May 2, 2016 Stacey Pectol, Clerk, Supreme Court of Arkansas
Justice Building
625 Marshall Street
Little Rock, AR 72201 RE: Administrative Order 10 Dear Clerk Pectol: Having reviewed the Proposed Affidavit to replace the current Affidavit of Financial Means, I have the following comments: 1. Shouldn't the net pay include the "other income" from page two before the total amount of net income is transferred to page one? 2. On the list of Creditors and Debts, could you include a space for the last four digits of the account number? 3. Also on the list of Creditors and Debts, could you provide some suggestions such as Mortgage, Student Loans, Medical Bills, Credit Cards, Bank Loans, Collections Accounts? I find that my clients remember their debts more easily if I ask for them by type. 4. At some place, you may need to inquire whether the debt was incurred during the marriage. Just having whose name the debt is in does not help determine whether or not a debt is a marital debt. 5. I would recommend a line for initials at the bottom of every page (mostly for the lawyers because we have this document for every client and they all look alike - especially when they just have numbers written in). 6. I would recommend PLAIN ENGLISH in the Responsibilities and Consequences section. 7. I liked the design of the Income worksheet, and I like the Responsibilities and Consequences section. 8. I would recommend moving the Notary box to the end of the document because it's just confusing at the beginning. Thank you for allowing an opportunity to comment on the form. Sincerely, /s/
Carla Fuller
ARBAR 90086