What Is an Affidavit and How Is It Used?

Simply put, an affidavit is a sworn statement of fact that can be used in a variety of legal proceedings, from bankruptcy cases to family and civil litigation matters such as divorce proceedings. It's one of the most common legal documents used as evidence when live sworn testimony isn’t possible. 

It’s important to understand what affidavits are and how they are used so you can avoid missteps, ensure your written testimony holds up in court, and strengthen your legal position. 

The legal significance of affidavits

Everyone who has watched a television show about lawyers—from Perry Mason to Boston Legal to Bull—has seen courtroom witnesses swear to “tell the truth, the whole truth, and nothing but the truth." A lawyer often says to the witness, “I remind you that you are under oath." If the witness lies on the witness stand, they can be prosecuted for the criminal offense of perjury.

The legal definition of an affidavit is that it's a written version of this well-known swearing under oath to tell the truth, just as if you were testifying in a courtroom. The written statement generally is signed both by the person making the statement (the affiant) and by the person attesting the document, usually a person who is legally authorized, such as a notary public or certain court or government officers.

Signing an affidavit that contains false information can subject the affiant to criminal penalties. Therefore, before signing, it is very important to read the sworn statement carefully to ensure that the information is accurate and truthful to the best of the affiant's personal knowledge. If the affidavit includes any statements that are the opinion or belief of the affiant, the fact that it is opinion or belief needs to be clearly stated.

Key components of legal affidavits

Like other legal paperwork, an affidavit has to follow a certain structure and include specific elements in order to be valid. Fortunately, the general structure and content requirements are quite standard and simple to administer.

First and foremost, the affidavit must contain the affiant's complete legal name and the reason for administering the affidavit. 

For an affidavit to hold up as evidence in court, it should also satisfy the following conditions: 

• It’s been signed. This sworn legal document needs to be signed by the affiant and the administrator of the oath (commonly the notary or court officer) if your situation or local jurisdiction requires this step. Signing a document with false statements can lead to charges of perjury. 
• Affiant is of sound mind. When you sign an affidavit, you are saying the information provided is true to the best of your personal knowledge. Therefore, the person signing needs to have the mental capacity to understand what they are signing. 
• Statements were made voluntarily. The affiant must take the oath highlighted in the affidavit voluntarily. If the court discovers evidence that the affiant signed unwillingly, under pressure, or coercion, they may consider the oath invalid and the affidavit inadmissible in court proceedings. 
• It’s been notarized. Notarization acts as a shield, authenticating the document and signature. Some state and local jurisdictions accept online and remote notarizations, while others don’t. Check your state’s requirements before submitting your documents. 

What is an affidavit used for? 

Affidavits can be useful in many situations. Many government forms include affidavits, such as driver's license applications, vehicle registrations, voter registrations, and concealed weapon permits.

Affidavits are also common in various legal proceedings, especially when a witness is not available to appear in court. Cases of family law, criminal law, and civil disputes like personal injury cases regularly call for the use of affidavits to support written motions and claims of residency, identity, or financial standing.

Let’s review some of the most common types of affidavits.

What is an affidavit of residence? 

This sworn statement is used as proof of one's current address. It is commonly used in situations where proof of residency is required. For example, students need to provide an affidavit of residency to qualify for in-state tuition fees.

What is an affidavit of marriage? 

This affidavit confirms one's marital status and can often be used instead of a marriage certificate when the marriage certificate is unavailable. Marriage affidavits are common during child custody battles to establish parenting rights or for immigration purposes, such as when one parent requires a foreign visa.

What is an affidavit of heirship? 

An affidavit of heirship is used to transfer a deceased person’s assets (such as estate assets or insurance benefits) to their beneficiaries. Depending on the estate's value, some states allow heirs to use this affidavit to skip the lengthy probate process.

What is an affidavit of name change? 

A name change statement attests to a person's identity and makes the name change official. For example, when a person gets married or divorced and therefore seeks to change their name on official documents like their Social Security card and passport, they can use a name change affidavit. The form needs to mention the person's previous name, new name, and reason for name change. 

What is an affidavit of property ownership?

This is a legal document that proves ownership of assets like house, car, or business. It's often used when a deed isn't sufficient and buyers seek extra assurance about the owner's right to sell property. The affidavit includes a legal description of the property and how the owner purchased or inherited it. 

What is an affidavit of will? 

This is when the signature of a person making a will is notarized. Generally, a will requires at least two witnesses to the maker's signature. Traditionally, when the maker died, it was necessary to have the witnesses testify in court in order to make the will valid. With a self-proving will affidavit, the will is automatically deemed valid without the testimony of the witnesses.

What is an affidavit of power of attorney? 

A power of attorney (POA) is a legal document signed by one person (known as the principal) that gives another person (the agent) the authority to act on the principal's behalf. However, this authority ends if the principal dies or revokes the power of attorney. Before a third party acts in reliance on a POA, the agent may be required to sign an affidavit stating that the power of attorney is currently in effect and that the principal has not died or revoked the POA.

What is a financial affidavit? 

This type of affidavit verifies certain financial information relating to the affiant. Financial affidavits are common in divorce cases, where each party must verify their assets, debts, income, and expenses. Financial affidavits are also commonly used in connection with estate planning and various financial transactions such as loan applications.

What is an affidavit of a lost document?

If a vital document is lost or destroyed, it can often be re-established with an affidavit. For example, if you are owed money under a promissory note that has been lost or destroyed, it may be possible to re-establish the note by executing an affidavit of lost promissory note and indemnity agreement. This allows another party to rely on your assurance that the note existed and that you will reimburse the other party in the event of any economic loss due to your assurance.

What is an affidavit of identity theft? 

If you have been the victim of identity theft, you may need to provide an affidavit certifying the theft to creditors, banks, and credit bureaus.

Affidavit forms

The basic affidavit form has four parts:

1. A statement that the affiant is swearing under oath to the truthfulness of the information contained in the affidavit
2. The information that is being sworn to
3. The signature of the affiant
4. The attestation of a notary public or other official authorized to administer oaths

A majority of affidavits use forms created by the courts, lawyers, or financial institutions. If you are in a divorce case, many courts have official financial affidavit forms that must be used. If you are involved in a court proceeding or are having a will or power of attorney created by a lawyer, the attorney will prepare the affidavit forms. If you are applying for a loan, the lender will provide any necessary affidavit forms.

There are numerous situations in which an affidavit must be created for a specific purpose. For example, an affidavit might be used to verify the ownership of property that is being sold or to certify marital status in order for a spouse to qualify for some type of marital benefit. A skilled lawyer can assist in tailoring such general affidavits to your situation.

FAQs

What happens after an affidavit is filed?

After filing, an affidavit is examined for its accuracy and adherence to legal requirements. It then becomes part of official court records and is accessible to relevant parties. Attorneys may use the affidavit to understand the merit of a case, cross-examine witnesses, and challenge or prove claims. 

How long does an affidavit remain valid?

The document remains valid as long as it meets legal requirements and serves its purpose. Sometimes, the affidavit may need to be updated. For example, in a divorce case, one spouse’s submitted financial affidavit can lose relevance if there's a major change in their financial position. Legal representation can help you understand the validity of your document based on your particular circumstances.

Does an affidavit have to be notarized?

Some circumstances require the affidavit to be notarized, but there are many cases where the affidavit doesn’t require notarization. For instance, since January 2024, New York has removed its requirement to notarize affidavits in civil cases, and there are some situations—such as certain government forms or contracts—that do not require notarization. Check with a lawyer to understand your jurisdiction’s requirements. 

What is the difference between an affidavit and a declaration?

An affidavit is a written statement signed before a notary that undergoes a formal and stringent verification process. Making false statements in an affidavit can lead to perjury charges. Depending on your jurisdiction, a declaration may be considered more of a personal statement or announcement for non-legal purposes. In other areas (such as California), “declaration” may be used to refer to sworn testimonials that may be called affidavits in other states. An attorney can advise you on these differences in your particular situation.

Edward A. Haman, Esq. contributed to this article.