What does a notary do? Do I need a notary?

Posted on Feb 26, 2021 by Katie Carter


I often find that there is a lot of confusion about the role of a notary in a divorce and/or custody case. We use notaries ALL the time; in fact, notaries often are involved in our agreements, affidavits, and other important documents that go to the court. For that reason, many of our staff people – the paralegals, secretaries, receptionists – are all licensed notaries. That way, it makes it easy. We don’t have to go to a bank to track one down, so, when it comes time to sign an agreement, it’s as easy as possible for us and for our clients.

A notary is important in a lot of different aspects of our work, but they don’t really perform the function that most people think they do.

A notary has, essentially, one job: to ensure that the person signing the document is the person who is supposed to be signing the document.

A notary does not read the document. Does not vouch for the document. Does not give the document itself any more legitimacy – excepting that he/she has ensured that the correct parties to the document have signed it. Does not answer questions about the document.

A notary protects you from a messy (and annoying) situation where someone who signed the document claims that he or she did NOT sign the document. Forgery situations are complicated and expensive – especially because, in the event a signature is contested, we have to get handwriting experts and others involved to prove or disprove the allegations – and you definitely want to avoid that. By having a notary involved, we can protect the integrity of the agreement and avoid future unnecessary expense.

When it comes to, say, a witness affidavit in an uncontested divorce, the notary ensures that the statutory requirements are met. The notary performs the same function – ensuring that the witness is who she is supposed to be – but, in this case, her acknowledgement of the document allows the court to rely on that testimony. The notary is in no way responsible for (or, in most cases, even remotely aware of) the testimony of the corroborating witness. But having the notary verify that person’s identity means that your uncontested divorce can move forward, and with legitimacy. It would be harder to overturn that divorce later.

When you testify in court – and, even if you’re signing an affidavit and don’t actually go, you’re considered to have given evidence in court – you’re making statements under penalty of perjury. You should be aware of this, and take your responsibility to testify truthfully, whether in an affidavit or in the witness box. (Since the notary has verified that you are who you say you are, you could be charged with perjury if your testimony turned out to be untrue!)

Is a notary required?

In some cases, yes, and in some cases, no. It really depends on the document and the purpose.

For a separation agreement, for example, you don’t have to have a notary. Most attorneys use notaries – but not because we’re required to. We use them for your protection.

I’ve said it before, and I’m sure I’ll say it a million more times. A divorce and/or custody attorney’s job is twofold: to get you divorced (or custody determined) today, and also to minimize future problems, later on down the line.

It’s not that helpful if we get your separation agreement signed, only to have your husband come back and attack it later. Sure, you can probably recover attorney’s fees if this is a meritless claim and/or your agreement supports an award of fees in this scenario, but that doesn’t mean that it wouldn’t be expensive, at least up front, time consuming, stressful, and completely unnecessary.

I’m not saying that he would do this, even without a notary. But I am saying that it seems such an easy and trivial thing to do to ensure that this certainly WILL NOT happen, and, so, that’s why we do it.

Where can I find a notary?

Well, like I said, in many cases, we just use the notaries in our offices. Almost all of our paralegals and secretaries are already notaries. Since an attorney can’t notarize her own work, we had to get notaries where we could.

But, in this day and age, especially with all the COVID-19 related restrictions, it may be harder than ever to find a notary.

Still, you don’t necessarily have to track one down at your bank. Virginia law allows you to use an e-notary, too. So, that can work if you – or your witness – lives in another state, or even another country. There’s a fee, but notaries aren’t supposed to charge huge fees. In fact, I recently had an e-notary service performed with an international witness, and the cost was just $45. If you’re looking for this service, I do recommend this one.

It was actually really cool; the notary converted my document to one that was e-signable, validated the witness’s identify with a passport and a selfie (with some authentication software that ensured that she was the same person), and then, via ZOOM, had the document translated, sent control to my witness who signed, and then took control back over to finish notarizing the document. It was seamless, and so well executed. Well worth $45, and it didn’t inconvenience me or my client in the slightest.

Anyway, the main thing to know is that the notary’s only purpose is to ensure that the person signing the document is who she says she is. That’s it. There’s no other function.

For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.