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This article is written by Gitika Jain pursuing BBA.LLB(Hons) from Amity University, Kolkata. This article deals with the ways of writing an affidavit for divorce.

Introduction

For filing a case in a court an important document may be required to be presented that is an affidavit which serves as a formal written statement containing the evidence and facts of the case and it’s an official way of presenting evidence to the judge of the court. Affidavits are mandatory to be sworn affirmed or signed by the parties before a commissioner of oath or any solicitor. 

A divorce affidavit is that kind of affidavit document on which an oath is taken by both the spouses about their wish to call off their marriage legally. In a divorce affidavit, it may be required for both the spouses to file another financial affidavit for dividing the financial properties between them. There is another affidavit called marriage affidavit which is found at the time of occurrence of marriage to register it legally and allow this marriage to be legally called off if the parties or any party it wishes to do so in a court by filing an affidavit of divorce. However, there lies certain rules and regulations to divorce legally. Therefore divorce effectively is very important in case of divorce matters. 

Concept of the affidavit of divorce

Affidavit of divorce is a legally binding document on both the sides of the parties that contains information related to the case of divorce and has the consent of both the parties.

Affidavit in a divorce case

An effective it is said to be a legally binding document on both the sides of the parties involved that allows to list down the reasons and claims and verify the ground of truth behind such claims. It always depends on the case of divorce that which affidavit needs to be filed and signed by both the affiants to call off their marriage legally. Along with the affidavit of divorce, the parties also required an affidavit of finance to divide the property equally between the two. The affidavit can be used as evidence to the judge as a witness and contains just enough information to convince the judge to make a decision. 

However, there are some strict rules about how effective it should be written, what an affidavit can include and how it must be affirmed. 

Need for affidavit

In order to support the case affidavit contains facts and evidence is related to the case. Oral evidence can also be presented before the judges but the facts must be written. For example, whenever there is an application in support of a child that application must also contain an affidavit that will provide information on payments incomes and the expenses that may influence the child support case. In the case of divorce, an affidavit is required to be signed by both the spouses when they expect to call their marriage off legally. 

What to say in an affidavit

An effective it must include three most important rules:

  • The truth – if an affidavit is constituted by the judge as false or misleading it won’t be accepted as admissible evidence and one can find himself or herself in trouble if it is proved that it has not been told. 
  • The relevant facts – it is important that an affidavit includes only first-hand knowledge of what was seen, heard what was done or what was said. Whenever an affidavit starts with the sentence “I think that” or “I believe that” it tends to weaken the truthfulness of the case. But there are few instances where the phrase ” I believe that” can be used:
    • Sometimes in some particular cases, an expert’s opinion like an accountant or a mental health professional has to be included in an affidavit. and if that’s the case they are allowed to include their opinion with writing the particular phrase. 
    • Whenever a thing is being quoted about what was said by another person then the name of the person and the date on which the thing was told has to be quoted in an affidavit.
    • if an affidavit is a part of a supreme court application for or temporary period of time information that does not have firsthand knowledge can be included. For example, whenever something is being told to the other person it could be written by including the three relevant things like who told him when it was told to him and the person should also believe that the statement told to him was true.
  • Sticking to only facts – An affidavit should not include anything that isn’t directly related to the case for example if one includes every single thing that is not required the for forwarding the case affidavit will not hold a valuable position.

Concept of affidavit for a consent divorce

In cases where there is a consent divorce and affidavit is called an affidavit of the consent form where both the parties mutually agree to seek divorce or call upon their marriage in the court. This affidavit can be signed in case of a contested divorce. In a contested divorce a consent form is filled by the respondent upon receiving a petition of divorce which shows that he or she is agreeing to the summons and is ready to pay everything such as money lawyers fee or property. 

Concept of divorce affidavit of service

An affidavit of service is usually given in cases where a divorce is contested from only one side of the party. The contestant sends a list of complaints to the other party or the respondent which gives the other party reasons as to why he or she is seeking a divorce. This makes the other party aware of the reasons for divorce and thereafter this matter is taken in the court within a certain time period.

Financial affidavit in a divorce

A financial affidavit in a divorce is a tough job to perform because it consists of all the finance related information that can be summed up on the legal paper and on the basis of which the property will be divided between the couples after their marriage has been called off. A financial affidavit includes the parties income expenses that are property and everything related to money. 

List of documents necessary for a divorce

  • Original and two copies of a legal petition.
  • Original two copies of the affidavit including financial consent parenting etc.
  • Certificate of marriage both original and copies.
  • Reduction for filing fee form if it is required in the financial details.

How to start writing an affidavit for divorce

  • The first step is getting an affidavit form from either a district court or online.
  • Obtaining from court clerk a copy of court rules.
  • Making a rough list stating all the facts that a person wants to state in the affidavit and the cross-checking it with the court rules.
  • Filing of the affidavit form by mentioning the parties name Court location case number and case name.
  • Mentioning the relevant facts so in a brief manner in the body of the affidavit.
  • Ensuring that no proper arrangement of facts is done and numbered properly.
  • A sign is also necessary for the front of a notary.
  • Getting the notary stamp and as well.

Do’s and don’ts of an affidavit

What to do:

  • Make use of plain language.
  • Include details in a short and precise manner.
  • Include information that is directly related to the case and not otherwise.

What needs to be avoided:

  • Express any Conclusion and opinions. For example instead of writing that a was drunk before he drove the car one can write a strongly smelled of alcohol and was staggering at the time of sitting in the car.
  • Express feelings or any reactions and avoid any kind of debate or argument.
  • Make accusations directly.

An important piece of document is child support and the divorce affidavits and one can anytime seek the legal advice of a divorce lawyer to help the drafting of affidavits that will help support one’s case and not go against it. 

An affidavit includes

A divorce affidavit includes:

  • The title and the caption- whenever a person is starting to write an effective way there must be a title attached to it as to what is the affidavit for and in the caption, it must include the name and location of the court along with the name of the defendants and plaintiff and the case number.
  • Introduction of affiant – the next thing that should be kept in mind after the title in the caption is the statement of affiant’s identity. This may include the name age, gender, occupation place of residence and relationship to the litigation.
  • Providing sworn confirmation of the facts – an important essential for an effective it is that it must be reformed and all the facts mentioned in the affidavit must be sworn by. Even at the end of affidavits, the sworn statements must be reconfirmed.
  • Listing down the facts- listing facts that are directly relevant to the case is very important and it must be written in the simple and plain language. It must not include any personal opinion and using the first person terms is not relevant.
  • Including relevant exhibits- the inclusion of documents that are relevant to the case that or bank statement receipts or any other documents are important in an affidavit.
  • Signature notarized affidavit – the final step is getting the affidavit notarized or signed by the efficient affiant. 

Once all the above steps are done and the affidavit is signed by the notary there are some more documents at the notary and the affiant need to sign:

  • Each page of the document
  • The affidavit itself
  • Any changes or alterations that are made to the affidavit
  • Any additional evidence included in the affidavit.

Exhibit

If the affiant wants the judge to see the documents that are in support of the statements made in the affidavit:

  • He must refer to it in the affidavit itself.
  • You must attach the documents to the affidavit as an exhibit.

Therefore the exhibit includes all sorts of things: a receipt photograph, email, text message, etc.

On the other hand, It is said that character reference is not a proper exhibit. 

Tips for writing a proper affidavit statement

Staying calm and fair

This may include avoiding any opinion for a conclusion even when they are based on the facts, avoiding any description of personal reaction or feeling, avoiding any argument or debate, avoiding words like always never all the time and not generalising the situation, avoiding any guessing of someone’s state of mind and avoiding making any accusations directly or indirectly. 

Staying focused

This may include all the relevant information that is directly relevant to the case. Generally, an affidavit starts with a general background and the one does not need to include every detail about the facts of the case at an early stage.

Usage of plain language

It is recommended not to use any complicated or legal languages and instead write simple and short sentences that a layman can understand.

Being organised and tidy

One of the most important things that an effective system must include is using a checklist of Information and keeping all the information in an organised manner with the use of headings and subheadings. Using paragraphs in between the piece of information is also helpful and listing down each and every fact in a chronological manner or by giving topics to each fact. Providing page numbers is also important and avoiding any typing error. 

Keeping the details brief and direct.

Getting the correct details

An affidavit must include all the details that answer who, what, when, where and how. 

Avoid using first-person and second-person pronouns like he, she or they. 

References


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