Understanding an affidavit vs. declaration is important in the business world. Affidavits are written documents attached to an affirmation, such as a notary public oath, which states that the statements in the document are true. Declarations are written documents the writer believes are true, but the statements contained in the declaration are made without the writer being sworn in.

The Legal Differences

Declarations are sometimes called “sworn statements” under the penalty of perjury. They are similar to affidavits in court because both are considered equivalent legally, although most judges prefer affidavits over declarations. That's because affidavits are signed in front of a commissioner or notary public, which makes the oath more legally binding.

Declarations, however, are only signed by the person writing the declaration. In some cases, they may be signed in front of a justice of the peace or legal counsel. Individuals may submit a true declaration according to U.S. Code 1746 under the penalty of perjury. Either way, both a declaration and affidavit require author signatures.

The person who gives a declaration is referred to as a “declarant,” while a person submitting an affidavit is an “affiant.”

Affidavits are authenticated via the author's signature, which is made while being witnessed by a commissioner of oaths or notary public. Signing an affidavit in front of a commissioner subjects the writer to perjury charges in the event the statements contained in the signed document are false.

By contrast, a statutory declaration must be signed by the author in front of a lawyer or other qualified witness. A declaration may include a statement such as, “I declare under the penalty of perjury,” as well as the date and author's signature in order to subject the author to perjury charges if the statement proves false.

Affidavits are more likely to be used in hearings as evidence, particularly in legal family matters. They're also used for legal documents, such as voter registrations. Anytime there is enough evidence to which an individual must swear, affidavits are more often used than declarations. However, an affidavit can be an inconvenience to the witness because they must pay a notary fee.

Declarations are generally used in situations such as patent registrations. Some courts are even turning more to declarations under penalty of perjury than affidavits because they are shown to be highly effective in getting individuals to tell the truth.

In general, the information presented in a statutory declaration and affidavit are the same. A statutory declaration, however, is typically used outside of a court setting.

Both a declaration and affidavit should be drafted with factual information. Each document should list items that the affiant or declarant states to be true. The statements contained in each document must be relevant to court proceedings or whichever venue the document is being used.

It's important to note that each statement contained in a declaration or affidavit should only contain one or two facts and include a numbered list for each statement or clause. Make the statements as concise as possible, listing the names of persons involved, times, and dates when applicable.

Swearing vs. Declaring

In most states, declarations aren't options for civil litigation, although they can be used to certify a document's authenticity. For instance, Ohio doesn't consider declarations to be defined under the categories of evidence, so they cannot be used during a summary judgment phase. Similar rules exist in states such as Arizona, Nevada, and Georgia. In these cases, affidavits may be the only option for court practice. While it takes extra effort to notarize an affidavit, the act is worth it and can make a big difference in court cases.

Federal court is somewhat different because declarations don't need to be notarized, which eliminates the extra effort it takes to obtain a notarized document. In fact, federal law recognizes:

  • Sworn declarations
  • Affidavits
  • Certificates
  • Verifications
  • Statements
  • Oaths

As long as these items are evidenced, supported, and proved, they are considered true under the penalty of perjury. In fact, an unsworn declaration, which is generally referred to as a statement or certificate, has the same effect as an affidavit in federal court.

Whether you'll need to swear or declare depends on your jurisdiction and whether you're in state or federal court.

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