Affidavit — A Definition

Edited by Hannah Locklear

Affidavits are a common type of document used for legal purposes. In a civil or criminal case, a lawyer may ask a plaintiff, defendant, or witness to sign an affidavit guaranteeing that the facts they gave are accurate and true. Affidavits are standard in family law and bankruptcy cases, though they may also appear in other types of cases.

What does an affidavit include?

All affidavits must contain specific elements to meet the legal system’s validity requirements.

An affidavit begins with a title to describe the document's purpose. The title will include the signing individual’s name and the court case number pertinent to the testimony, if there is one.

Affidavits include a statement of identity, which lists identifying information about the person making the statement. Identifying information typically includes details like their address, age, occupation, or specific details about them that relate to the case.

For instance, someone declaring bankruptcy may sign an affidavit including information about their debts, like the creditors they owe and the amount of each obligation.

All affidavits include an oath, where the person swears in writing that the information given is accurate to the best of their knowledge. If any of the statements they write are false, a law enforcement officer can charge the individual with perjury.

Finally, the person signing the affidavit must do so in front of a witness. If the affidavit references any documents, the documents must be signed by the witness or notary, too.

Some courts require affidavits to include additional information, depending on the jurisdiction and purpose of the document.

Can individuals prepare their own affidavits?

It depends. In general, people can prepare their own affidavits. However, if a person decides to prepare their own testimony, they must comply with the court’s instructions. Some courts require the person to compose an affidavit in its entirety before a witness.

Individuals who prepare an affidavit on their own must ensure they completely understand the information given and don’t make any errors. Mistakes can result in someone being unintentionally liable for something they didn’t mean to say.

Is it better to hire a lawyer to prepare an affidavit?

Yes, in most cases, it’s best to hire a lawyer when preparing an affidavit. A lawyer can help the individual fully understand the affidavit's contents before signing it.

Since an affidavit is essentially the equivalent of agreeing to an oath in court, the person should have a complete comprehension of the terms of the testimony and how it may impact them in legal proceedings.

A lawyer can also ensure that the affidavit complies with the local court’s rules. They’ll be familiar with the requirements for the affidavit’s contents and can eliminate the potential for a mistake.

If an individual’s reason for needing an affidavit is complex, it’s best to seek a lawyer’s advice instead of trying to handle it independently.

What are the various types of affidavits?

There are numerous types of affidavits, and they’ll differ depending on the kind of case they concern.

Estate law commonly uses affidavits for wills and trusts. For instance, a small estate affidavit is helpful when someone dies without a will. The person who signs the small estate affidavit will identify the deceased individual's assets so that a court can decide how to distribute them.

Someone who changes their name, like through marriage or after a divorce, may need to sign an affidavit. For instance, a credit card lender or mortgage loan provider may ask for confirmation of your name change through an affidavit.

Residence is another common reason for an affidavit. A school may require that you sign an affidavit concerning your residence before allowing you to enroll your children. Sometimes, you may need to provide a testimony of your residence for tax purposes.

Affidavits are also typical in criminal cases like identity theft. If you believe someone stole your identity for financial gain, you’ll need to attest to the theft to your creditors.

The affidavit prevents someone from falsely claiming their debts are the result of identity theft. If the investigation later uncovers that the individual falsely claimed identity theft, law enforcement can charge them with perjury, among other things.

Are all affidavits notarized?

In most cases, it’s best to have an affidavit notarized. In many jurisdictions, notarization is a requirement. Having an affidavit notarized ensures that the courts accept your document.

Notarization also prevents potential identity theft or fraud. You don’t want someone signing a statement in your name that you haven’t given.

What is an affidavit of debt?

Like most affidavits, an affidavit of debt is a sworn document that is filed into a debt collection lawsuit to certify that the information listed in the Summons and Complaint is accurate and true.

The FDCPA has closely scrutinized the filing of affidavits in debt lawsuits. There is a debate over whether debt collectors and creditors should be required to attach an affidavit of debt to a Complaint when the case is initially filed, and whether it is up to FDCPA or state courts to determine the validity of an affidavit of debt.

Some affidavits of debt are considered misleading, especially when filed by a debt collector who has inherited ownership of the debt from the original creditor. The idea is that many collectors submit affidavits of debt which only represent the records of the original creditor, which cannot be truly authenticated by the debt collector.

If you have been sued by a debt collector who has filed an affidavit of debt supposedly validating the debt you owe, try responding to the case with an Answer document to fight back.

With the right response and defense, you can beat debt collectors in court. SoloSuit can help you draft and file an Answer to a debt collection lawsuit in all 50 states.

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