What is an affidavit?
Affidavits are written statements that are sworn under oath. Sometimes affidavits are signed in front of a notary public. The person writing the affidavit is called the "affiant."
When is an affidavit used?
In most court cases, written statements cannot be used as evidence. Usually the person actually needs to talk to the judge directly ("testify") instead of writing out a statement. There are some exceptions to this rule, however, such as in divorce and custody cases. Affidavits are allowed in most "temporary matters hearings," which are hearings that can happen early on in a divorce or custody case. Either party to the case can ask for a temporary matters hearing. The purpose of this hearing is for the judge to decide what the custody arrangement or property arrangement should be while the case is still ongoing. At a temporary matters hearing, both parties to the case will get a chance to explain to the judge, usually through affidavits, why they should have temporary custody of children or temporary possession of property. The judge's decision is temporary and will only stay in effect until there is a final decision in the case.
Each judicial district in the State of Iowa has different rules about temporary matters hearings, such as how many affidavits are allowed, how long the affidavits can be, how many days before a hearing a person must submit their affidavits to the court and the other party, and whether the judge will also hear live testimony. You should contact the clerk of court to find out what the requirements are for a temporary matters hearing.
What does an affidavit need to say?
An affidavit is basically a letter to the court, where the affiant can explain to the court what he or she wants and why the court should order it. For instance, in a divorce case a spouse can tell why a proposed custody arrangement should be ordered. An affidavit could be used to explain why a party believes property should be distributed in a certain way.
The affidavit must include the following language: "I certify under penalty of perjury and pursuant to the laws of the state of Iowa that the preceding is true and correct." The affiant should then sign and date the document. In Iowa, it is not necessary to have a notary public witness the signature, but it is fine if it is witnessed and signed by a notary public.
It is best if the affidavit also has the case "caption" at the top of the first page. The caption is the part of a court document that has the court name, parties' names, and the case number listed. It can be found on any of the court papers for the case and copied on the affidavit.
Who needs to write an affidavit?
Usually the party to the case will need to write an affidavit. Sometimes, a person who is not a party to the case should write an affidavit. For example, in a case involving custody of a child, the parent would want to have a few close family members and friends write affidavits about the parent's parenting skills and relationship with the child. The parent could also ask a doctor,
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
- Call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161.
- Apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.