What Goes in my Affidavit?

Family court cases typically get kicked off with a temporary hearing.  I have written about temporary hearings here, here, here and here.  At these temporary hearings, there is typically no testimony, very short oral arguments by the attorneys, submission of affidavits and exhibits for the judge to review and then the judge renders a decision.  In fact, Rule 21(b) of the South Carolina Family Court Rules states that “evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary.”

Many times courts allow the attorneys an opportunity to make a brief argument on behalf of their clients, but there have been some occasions where the court advises that they do not have time for arguments and they are only going to consider the pleadings, affidavits and financial declarations in their temporary decision.  Needless to say, the content of your affidavits are extremely important.  When it comes to affidavits there are two main types: the client’s affidavit and supporting affidavits.

The Client’s Affidavit

Here are some things I try to focus on when helping clients prepare temporary hearing affidavits (or affidavits for other hearings):

The first set of tips has to do with the format.  I would recommend having a type-written affidavit using a normal 12-point font with double line spacing to make the affidavit easy to read.  I know how frustrated I can get reading tiny fonts, bad handwriting, or tightly spaced wording (typed or not) and I can only assume that judges also have a more difficult time reading these kinds of affidavits.

Next, consider the content.  I usually ask clients to have a brief history of the marriage.  Beginning with when and how you met, began dating, and some information about the marriage.  Then, we move into the reason for the separation and what led up to the divorce proceedings.

The next step is to address the contested issues and I like to organize them according to my client’s priorities.  Typically, the issues of custody and visitation top the list.  You should describe your involvement as a parent, who primarily takes care of the children, what the routine looks like and what your plan would be if you were awarded custody of the children.  You should also discuss the role your spouse has played in the lives of your children.  Also, consider what kind of visitation you would want your spouse to receive and how you are going to encourage the relationship between the children and the non-custodial spouse.  You should also describe to the court concerns you have about your spouse, but this is not an opportunity for you to trash your spouse.  For example, has he/she been involved in an adulterous affair and involved your children in that relationship?  Does your spouse have an anger issue, or addiction to alcohol or drugs?

Before discussing your desire for child support and/or alimony, I suggest that you discuss you and your spouse’s educational backgrounds, work/employment history, reasons for jobs changes (e.g. fired, laid off, resigned for better position, etc.), pay history, and current employment.  For the issue of temporary spousal support it is also helpful to remind the court of any fault in the breakdown of the marriage (e.g. adultery, physical abuse, habitual drug use or alcoholism).  I think it is also helpful to relate this paragraph to your financial declaration to point out how your (very reasonable) living expenses exceed your gross income and either how you need additional money from your spouse to help ends meet or you can’t afford to pay more than reasonable child support because of your other financial obligations incurred during the marriage.   Now that we have the basis for your understanding of the parties’ income you can begin to frame your request for (or against) child support, alimony, and attorney fees.

You should also ask for specific items you are requesting such as continued health insurance coverage for you or the children, possession of the marital residence and a determination of who should be paying the bills, possession of the vehicles and other items of personal property.

Supporting Affidavits

When it comes to supporting affidavits, I know I am not the only attorney who has reviewed dozens of pages from brothers, sisters, friends, parents, and other family members describing how great my client is.  But the truth is, the court would expect family members to be on our side and provide glowing reviews of our client’s behavior and parenting skills.

What is more beneficial to the case are affidavits from neutral third-parties such as a teacher, daycare provider, doctor, counselor, or private investigator.  While I somewhat belittled having family members give affidavits, if they have very specific information they can provide about instances they personally witnessed that back up your claims then it is more effective.

These affidavits should set out the relationship of the affiant (the person writing the affidavit) to the client and his/her spouse, how long they have known them, how frequent the contact is, and their specific points about things they have witnessed that support our case or contradict allegations the spouse is making.

Comments

  1. J. Chris Bourdier says:

    My witness who can attest that I and my wife have been living separately for the past year may have difficulty making it to the hearing. Is that person allowed to submit an affidavit instead of appearing? Would my wife be allowed to testify to that effect, or submit an affidavit herself?

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