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What, if any, is the difference between an affidavit and a declaration. Is there a civil code that covers this?

Los Angeles, CA |
Filed under: Litigation

This is for California.

Attorney Answers 3

Posted

There is really no difference.

In California state court, declarations under penalty of perjury signed in California may be used in place of affidavits. Code of Civil Procedure section 2015.5 provides as follows:

"Whenever, under any law of this state or under any rule,
regulation, order or requirement made pursuant to the law of this
state, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn statement,
declaration, verification, certificate, oath, or affidavit, in
writing of the person making the same (other than a deposition, or an
oath of office, or an oath required to be taken before a specified
official other than a notary public), such matter may with like force
and effect be supported, evidenced, established or proved by the
unsworn statement, declaration, verification, or certificate, in
writing of such person which recites that it is certified or declared
by him or her to be true under penalty of perjury, is subscribed by
him or her, and (1), if executed within this state, states the date
and place of execution, or (2), if executed at any place, within or
without this state, states the date of execution and that it is so
certified or declared under the laws of the State of California. The
certification or declaration may be in substantially the following
form:
(a) If executed within this state:

"I certify (or declare) under penalty of perjury that the
foregoing is true and correct":
_____________ _________
(Date and Place) (Signature)

(b) If executed at any place, within or without this state:

"I certify (or declare) under penalty of perjury under the laws of
the State of California that the foregoing is true and correct":
_____________ _________
(Date) (Signature)"

Similarly, in federal court, under 28 U.S.C. 1746, a declaration has the same force and effect of a notarized affidavit.

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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2 comments

Sean Michael Foldenauer

Sean Michael Foldenauer

Posted

Mr. Chen is correct, again.

Asker

Posted

Mr. Chen should be a law professor.

Posted

Not much difference. Declarations you declare facts based upon your knowledge and under penalty of perjury. Affidavits you swear to the truth under oath and sometimes in front of witnesses. basically the same but declarations are easier to use and more common.

This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.

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Posted

Follow the code section that requires either a declaration or an affidavit, and use the one that's specified.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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