What Is an Affidavit and When are They Used?
An affidavit is a sworn statement that is in writing. Affidavits are usually used in a court or in negotiations. They must be notarized and the affiant (the person making the statements in the Affidavit) 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 the caption of an existing case filed in court or it may simply say “Affidavit of [your name]” if you do not have an open case but need to swear to something.
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 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. If your statements refer to documents, the documents should be attached to the affidavit as exhibits.
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 in most legal proceedings, courts will require the affiant to testify to the affidavit or the affidavit may be disallowed as hearsay. Since hearsay is not admissible as evidence, the affidavit may not be used for evidence if someone objects to it unless the affiant is present to testify in court. Thus, never assume that just because you have a signed affidavit that it will be accepted as admissible evidence. Sometimes courts may have local rules that will state whether an affidavit is considered hearsay or not. An 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
The primary qualification to sign an affidavit is that you are competent as a witness. Does the affiant have personal knowledge of all the facts to which the affiant swears in the affidavit? Along with relevancy, this is one of the two most fundamental rules of evidence. An affiant may only testify to matters within their personal knowledge. That means it is the obligation of the person presenting the affidavit to establish that the affiant has personal knowledge of something relevant to the matter at issue. The affiant must also be of sound mind and understand what they are signing and why they are signing it. Keep in mind that an affidavit is signed under oath. Generally, a person will not be asked to sign an affidavit unless over the age of 18. In rare instanced, minor may be asked to sign an affidavit.
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.
Types and Uses 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.
Affidavits to support court filings. You may be asked to sign an affidavit affirming that the contents of a legal document that you filed in court are true and correct.
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.
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.
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.
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.
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.