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What Is an Affidavit and When are They Used?

In a nutshell, an affidavit is a sworn statement that is in writing. Affidavits are usually used in a court or in negotiations. They are common in family law cases and bankruptcy cases. They are also used in civil and criminal cases, though not as often as family or bankruptcy law cases. They must be notarized and you must swear that the facts contained in an affidavit are true and correct. When you notarize an affidavit, you must also sign it in front of witnesses. Generally, banks will notarize affidavits and other documents for you and will provide witnesses.


The Parts of an Affidavit

The affidavit starts with a heading. The heading may be made of a case heading if the affidavit is for an open case, or it may simply say “Affidavit of [your name]” if you do not have an open case but need to swear to something. The case heading includes the court your case is being heard in, the case number, and the names of the plaintiffs and defendants. After the case heading or general title, the county and state where you will sign the affidavit will be listed.

The very first section contains your name in a sentence that generally states, “Before me comes [your name], whose residence is [address, including city, county, and state], and hereby swears to the following facts under penalty of perjury.” Depending on who drafted the affidavit, that sentence may vary in wording, but it will always state that you, the affiant, swear that the following account of events is true and correct to the best of your knowledge.

The following paragraphs usually each contain one fact. After the facts are laid out, the affidavit usually contains the words, “Further Affiant Sayeth Naught.” This means that you have said all you have to say on the matter.

Next come the signature lines and notary section. When you sign the affidavit, you are swearing that the facts in the document are true and correct. You are also swearing that the facts are true and correct when the notary signs the notary section.

Using an Affidavit as Admissible Evidence

An affidavit is admissible evidence, although some courts may require you to testify to the affidavit or they may consider it hearsay. Since hearsay is not admissible as evidence, your affidavit may not be used for evidence if someone objects to it unless you testify. Thus, never assume that just because you signed an affidavit that it will get you out of testifying in court as a witness. Sometimes courts may have local rules that will state whether an affidavit is considered hearsay or not. Your attorney will let you know if you need an affidavit, have to testify, or if you need an affidavit and will have to testify.

Restrictions on Affidavits

No restrictions for age are in place for signing an affidavit. However, you must be of sound mind and you must understand what you are signing and why you are signing it. Keep in mind that an affidavit is signed under oath. Generally, you will not be asked to sign an affidavit unless you are over the age of 18. However, minors may be asked to sign an affidavit in a family court matter, as long as the minor is of sound mind and is of an age where he or she is old enough to understand the facts and that the minor is signing a document that must be true and correct.

Consequences of Signing an Affidavit

Before you sign an affidavit, keep in mind that there are legal consequences to signing an affidavit with false facts. Since you are signing a document under oath, it is the same as testifying in a court of law. If you provide information that is false or lie on the affidavit, you could be fined for perjury. Fines could include monetary fines, community service, and even jail time. The punishment and the severity of the punishment vary from state to state.

When You Might Need an Affidavit

Several types of cases require an affidavit, and in some cases an affidavit is voluntary. In family law, you will have to complete a financial affidavit as part of the discovery process. However, that is not quite the same as a written affidavit in that you are not writing out a series of facts. In other cases, you may have to draft an affidavit in the following circumstances:

  • To state that you received legal documents
  • To notify a creditor or other third party of the death of someone
  • To notify someone, such as a spouse during post-dissolution proceedings, of a change in circumstances
  • To verify residency
  • To make a formal statement as a witness in court hearings
  • To verify a name change, usually needed if you are newly married or got divorced and are reverting back to your maiden name
  • To claim assets or property
  • To confirm another person's identity if their identity has been stolen

Writing an Effective Affidavit

An affidavit is not written in typical paragraphs. Each paragraph is numbered and usually contains one fact. To ensure that the affidavit is easily understood, follow these best practice tips:

  • Keep legal language out of the affidavit as much as possible.
  • Keep the sentences short.
  • Keep the affidavit as short as possible.
  • Make sure your thoughts are organized and in the proper order if you are relating your actions in an event.
  • Do not use inflammatory language.
  • Leave any drama out of it; just state the plain and simple facts.
  • Proofread the affidavit for spelling errors and grammatical errors.

Keep in mind that the affidavit may speak to your credibility, so following these simple tips will make you look more professional and will not negatively affect your credibility.

Types of Affidavits

You may be asked to draft a general affidavit stating the facts of an event that you witnessed or that you were part of. Certain court cases also have different types of affidavits that you may have to sign.

  • Financial affidavits are used in family law. Whether you are going through divorce proceedings or are separating and asking the court for temporary child and/or spousal support, you may have to provide information about your assets, liabilities, and income.
  • Small estate affidavits are used when your spouse passes away without a will. You might be asked to provide a small estate affidavit if a close relative passes without a will and he or she does not have a spouse. The affidavit requires you to swear that you should be responsible for managing the person's estate and distributing any assets that may be left after the estate bills and creditors have been paid.
  • An affidavit of death is used to notify the court, a company, or some other entity that a person has passed away. You may have to attach a copy of the person's death certificate. At the least, you will need to provide the person's full name, birth date, and date of death.
  • Support affidavits are used to show a visa applicant has plenty of financial support if he or she is allowed to enter the country.
  • An affidavit of heirship is used to show that you have the legal right to the assets of a relative that has passed away. When you sign this affidavit, you are swearing that you are the rightful heir of the deceased person.
  • A personal information theft affidavit is used if someone's identity is stolen or compromised. The affidavit is for banks, credit agencies, and creditors, and it swears that a person's ID was stolen. This affidavit is often required in order for the victim to start recovering their identity.
  • An affidavit of residence is often used in family law but may be used in other types of cases. It may also be used to show residence information for employment purposes or so your children can attend school in their district.
  • If you have changed your name, you may have to draft an affidavit of name change for companies or entities. You will usually have to list your former name, the state where the name change took place, and your current name.
  • You might need an affidavit of domicile when you are probating a will or if you have certain types of trusts. The affidavit of domicile is different from the affidavit of residency as your domicile is your legal residence, not where you may be temporarily living. It is common for those in the military to have one residence (where they currently live) and a domicile residence (where they normally live when they are not stationed elsewhere).
  • In some cases, you might need an affidavit of marriage. This affidavit simply states that you are legally married. It could take the place of a marriage certificate if you lose the certificate. You might use it to apply for insurance or some financial accounts. It may also be used in states that have common law marriage, as you do not have a marriage certificate if you are married by common law. The affidavit includes the wedding date, town, county, and state of marriage, and your name and your spouse's name. Both you and your spouse must sign the affidavit. In most states, it must be witnessed.
  • An affidavit for service of process is generally used by attorneys and businesses that serve court documents. This affidavit states that documents were served on another entity or person by a specific person. The affidavit includes who the documents were served on and the date and time the documents were served.
  • An affidavit of debt states that someone owes a specific amount to an entity or another person. These are common in bankruptcy cases or may be used when a company is getting ready to close down. The original contract is more valuable than an affidavit when proving debt, so you should use that if possible. Furthermore, if you have to prove that someone owes you money, an affidavit is not enough—you do need the original contract.

Formalizing an Affidavit

For an affidavit to be valid, it must be notarized. Since a notary is swearing that it is your signature on the affidavit, the document must be signed in front of a notary. If the notary does not know you, he or she will ask to see your identification. The identification must be a valid form of photo identification such as a non-expired passport or driver's license.

In some cases, the notary may have to perform a jurat. This means that you, as the signer, are swearing that the facts contained in the document are true and correct to the best of your knowledge. The notary will administer an affirmation or oath to you before the document is signed. Since a notary is not able to tell you whether you just need to notarize your signature or if he or she must perform a jurat, it is up to you to know which type of notary you need. Most legal documents, including affidavits, have a jurat written in the document as part of the notary's signature. In the case of an affidavit, the jurat is at the beginning of the affidavit and in the notary box.

Most law offices, banks, or post offices have a notary if you do not personally know a notary. In some cases, a notary will charge for his or her services, but in other cases the notary may not charge. This depends on state law and whether the institution requires the notary to charge a fee. In many cases, if you have an account at a bank, the bank may not charge a fee even though it could.

LegalNature Can Help You with Your Legal Form Needs

LegalNature can help you with all of your legal form needs. Let us help you get started today. We have several different types of affidavits, including an affidavit of heirship, affidavit of domicile, affidavit of marriage, and a general affidavit.

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