Affidavit vs. Declaration: What's the Difference and Which Do You Need?

Disclaimer: This article provides general educational information and is not legal advice. Which document a court accepts varies by jurisdiction and situation. For advice about your specific matter, consult a licensed attorney.

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People use the words affidavit and declaration as if they're the same thing — and they do the same job (putting sworn facts in front of a court). But they differ in one important way: whether a notary is involved. Choosing the wrong one can get your document rejected, so it's worth understanding the distinction.

The Core Difference

| | Affidavit | Declaration | |---|---|---| | Sworn before a notary? | Yes | No | | Made under penalty of perjury? | Yes (oath) | Yes (written statement) | | Requires a notary's seal? | Yes | No | | Typical cost | Notary fee ($5–$15) | Free |

An affidavit is a statement of facts sworn or affirmed before a notary public (or other authorized officer), who administers an oath and applies a seal. A declaration (sometimes called an unsworn declaration) is a statement signed under penalty of perjury without a notary — the signer's own penalty-of-perjury language stands in for the oath.

The Legal Basis for Declarations

In the U.S. federal system, 28 U.S.C. section 1746 allows an unsworn declaration to be used in place of a sworn affidavit in most situations, as long as it includes wording like:

"I declare under penalty of perjury that the foregoing is true and correct."

Many states have their own equivalents. For example, California's Code of Civil Procedure section 2015.5 authorizes declarations, and several states permit unsworn declarations for most court filings. The practical effect: in many courts, you can skip the notary.

When You Need an Affidavit (Notarized)

A true affidavit is typically required when:

• A statute or court rule specifically demands a sworn, notarized document
• You're recording a document with a government office (deeds, property records)
• The filing goes to another jurisdiction that may not recognize your state's declaration
• The matter is high-stakes and you want the extra formality

When a Declaration Is Enough

A declaration usually works when:

• The court accepts unsworn declarations (many do, for routine filings)
• Speed or cost matters and no notary is handy
• You're filing in federal court under 28 U.S.C. section 1746
• No rule specifically requires notarization

How to Choose

1. Check the form or rule. If it says "affidavit" or "sworn," you likely need a notary. If it says "declaration" or "under penalty of perjury," you probably don't.
2. Ask the clerk. Court clerks can tell you what format that court accepts.
3. When in doubt, notarize. A notarized affidavit is accepted virtually everywhere a declaration is — the reverse isn't always true.

A Note for Canada

Outside the U.S., terminology differs. In Canadian courts, sworn statements are typically affidavits sworn before a Commissioner of Oaths or a notary, while a statutory declaration is a formal declared statement under the Canada Evidence Act or provincial equivalents. The "unsworn declaration under penalty of perjury" model is a U.S. concept — Canadian filers should follow their province's rules.

Common Mistakes

❌ Filing a declaration where the rule specifically requires a notarized affidavit ❌ Leaving out the exact penalty-of-perjury wording in a declaration ❌ Forgetting to date a declaration (the statute often requires it) ❌ Assuming a U.S. declaration will be accepted abroad

Frequently Asked Questions

Q: What's the main difference between an affidavit and a declaration? A: An affidavit is sworn before a notary; a declaration is signed under penalty of perjury without a notary. Both are made under penalty of perjury.

Q: Is a declaration as legally valid as an affidavit? A: In many courts, yes — federal law (28 U.S.C. 1746) and many state laws let a declaration substitute for an affidavit. But some filings still specifically require a notarized affidavit.

Q: Do declarations need to be notarized? A: No. That's the defining feature — a declaration replaces the notary's oath with the signer's own penalty-of-perjury statement.

Q: Which one should I use? A: Follow the form or rule. If it requires a sworn or notarized statement, use an affidavit. If unsworn declarations are accepted, a declaration is faster and free. When unsure, notarize.

Q: Does lying in a declaration carry the same penalty as an affidavit? A: Yes. Both are made under penalty of perjury, and false statements in either can be prosecuted as perjury.

How discover.legal Helps

Our platform builds either format — a notary-ready affidavit or an unsworn declaration with the correct penalty-of-perjury language — based on what your court requires, with the structure and wording formatted to be accepted. We don't provide legal advice.

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