Can You Revoke a Sworn Affidavit in a Divorce Case?
By Beverly Bird
The divorce process is riddled with occasions when you're asked to sign documents under oath. Most include language saying you’re attesting to the truth of your statements. Affidavits usually relate to motions - when you or your attorney ask a judge to decide an issue temporarily until your divorce is final. Your affidavit is the written presentation of the facts behind your request. Most states also require financial affidavits early on in a divorce. These contain information regarding your assets, income and budget to guide the court in making property and support decisions.
If you tell the court you want to revoke your affidavit, either one that relates to a motion hearing or your financial statement, it is most likely going to raise red flags for everyone involved. The court and your spouse are going to want to know why you’re making this request. They’ll assume the affidavit includes a statement or some information that is inaccurate. You might have thought it was true at the time you signed the document, only to find out later that it was not. You might have made allegations against your spouse that you regret and want to take back. If you knowingly made false statements, and if you did so under oath, it’s perjury.
Perjury is a criminal offense. It's rarely prosecuted in the context of family law, but “rarely” does not mean “never.” A Michigan court convicted a spouse of perjury in her divorce action in 2004. However, it’s unlikely you’ll face criminal charges if you ask the court if you can retract your affidavit. Your spouse or the court would have to prove beyond a doubt that you intentionally lied in it and that's why you want it back. The fact you’re trying to revoke your sworn statement might indicate you did not intend to deliberately mislead anyone. In a worst-case scenario, the judge could charge you with contempt of court if your retraction brings attention to an outright lie. This might involve financial penalties.
If you're suspected of perjuring yourself, the probable result would be that the judge no longer trusts you or your version of events. This could work against you if your divorce goes to trial. Technically, your spouse would have to prove the statement you’re trying to retract is blatantly false and you knew it at the time you made it. Sometimes, casting suspicion on a spouse is enough to sway a judge.
If you mistakenly swore under oath that something was true when it wasn’t, you have some options to make it right without revoking your entire affidavit. You can usually file an amended pleading, a new affidavit to replace the one you want to retract. You can state in this document you made an error in your previous affidavit and would like to correct it. This indicates to everyone that your mistake was unintentional and you’re attempting to remedy the situation. Oftentimes, you can also file an amended financial statement if the original contains an error. If your affidavit relates to a motion you initiated, most courts will allow you to dismiss the entire motion. However, this might not be possible if your spouse has filed a cross-motion in response to your initial paperwork.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.