The Affidavit in North Carolina Family Law Cases

An affidavit is a written statement confirmed by oath or affirmation for use as evidence in a court case.  The person making the affidavit is called the affiant.  In family law cases in North Carolina affidavits are frequently used for a number of different purposes.

The following list is not exhaustive, and the creative use of an affidavit can help almost any case.

Financial affidavit.  This is a statement of the affiant’s income and expenses.  They are frequently used in postseparation support, alimony, and child support hearings.  In theses hearings the court will examine the financial affidavit of each party and receive financial evidence to determines need and ability to pay postseparation support and alimony.   Financial affidavits are used sometimes in child support cases where there is a request to vary from the application of the North Carolina child support guidelines.

Equitable distribution inventory affidavit.   This is a statement by the affiant of his or her property and debts for purposes of an equitable distribution action.  This kind of  affidavit usually has a listing of what the party claims to be marital, divisible, and separate property and debt as well as date of separation and current values.

Affidavits of expert witnesses.  In some situations it is appropriate to ask an expert to prepare a sworn statement.  For example, in a postseparation support case where the payor will get a tax deduction and the recipient will have to pay taxes, one or both parties may hire an expert to give an opinion on the tax impact of different amounts of postseparation support.

Affidavits in child custody cases.  Many North Carolina judicial districts allow the use of sworn statement in temporary child custody cases.  Durham County is a good example of this.  Often these kinds of affidavits are prepared by non-party witnesses.  For example, it is frequent to see an affidavit from a child care provider.  Affidavits are not used in Wake County temporary child custody cases.

Affidavits in support of other motions.   There are many examples of other kinds of affidavits in North Carolina family law cases.  For example, the attorney fee affidavit, affidavit in support of a Rule 59 motion or in response to a Rule 59 motion.

Tips for writing an affidavit:

  • The best affidavits are written by the person making the affidavit.  The affidavit is the testimony of the affiant, not the lawyer or someone else.
  • It should be based on facts and observations of the affiant, not opinion.
  • A letter is not the same thing as an affidavit.
  • It should use plain language and be free from typographical and grammatical errors.
  • An affidavit must be sworn to.