Failure to Timely File Financial Affidavits Establishes Prejudice
You would think that family law divorce attorneys would know that filing a financial affidavit is both mandatory and non-waivable by the parties. However, how many times have you arrived at a court hearing only to have the other side (whether represented by an attorney or not) show up with a fresh financial affidavit that substantially changes issues in the case?
In the recent 2nd DCA opinion of Gilroy v. Gilroy, such gotcha litigation tactics are no longer going to be allowed. In the Gilroy case, the former wife showed up with a financial affidavit on the day of hearing. Florida statute 61.30 (14) provides that a financial affidavit should be filed with the answer to a petition… But in any case at least 72 hours prior to any hearing on the finances of either party. This statute is frequently violated by pro se parties and lawyers representing parties in cases in which financial issues are relevant. This opinion is a great reference opinion to have in a trial notebook to be used when such tactics occur. When faced with such a late provided financial affidavit, don’t forget to seek a continuance. Hopefully, there will be a court reporter present. However, if you don’t ask for a continuance, you can’t claim prejudice at a later date.
The Gilroy opinion has now placed pro se litigants and practitioners on notice. Failing to comply with the requirements of filing a financial affidavit 72 hours prior to any hearing is going to result in either a continuance or the inability to use that financial affidavit at the hearing. The downside to this opinion is that the reversal of a judgment premised upon the late filed financial affidavit allows for a new hearing and resets the 72 hour clock. The late filing party got away with it this time. However, in future appeals, the appellate court may very well issue a ruling requiring the judge to revisit the issue without regard to the late filed financial affidavit.
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