By: Avrum Aaron
As a US lawyer who lives outside the US, I am often asked to notarize documents for US citizens. This should be pretty simple. After all, I am a New Jersey notary by virtue of the fact that I am admitted to practice law in New Jersey. Since I can practice law while I am outside New Jersey, I should be able to notarize when I am outside New Jersey.
Pretty simple — but not so fast.
There are those who say that a notary can only notarize when he or she is physically located in his or her state. This is the position of the American Society of Notaries (http://www.asnnotary.org/?form=jurisdictionissues). Of course, they have as much authority to make state law as the American Automobile Association has to set state speeding limits. That is, none whatsoever.
Only the states can make laws about notaries and some states’ laws — such as New Jersey’s — are not clear on this issue. On one hand, the New Jersey Notary Public Manual states: “A duly appointed New Jersey Notary Public is authorized to perform notary services throughout the State of New Jersey.” On the other hand, in listing the five prohibitions that a New Jersey notary must be mindful of, notarizing outside the state is markedly absent.
Now, some would argue that the lack of a prohibition is obvious, but that’s not the way the law works. It is a principle of law that one cannot be punished unless there is a specific statute that is violated. Therefore, it would seem that a New Jersey notary who notarizes outside New Jersey would have a good case not to be punished.
The idea that New Jersey would attempt to prosecute a notary who notarizes out of state is highly unlikely (that’s why lawyers say it won’t happen, but could). The state shows how much they value a notarization by limiting the charge to notarize to $2.50. In the event a document is questioned because the notary was not in New Jersey, the notarization could be considered invalid. All that means is that it would have to be notarized again (assuming that’s possible).
There is an interesting solution to the problem of being outside your state and needing a notary. The State of Virginia allows for remote notarization and there are companies that are set up to notarize online. Whether these Virginia notarizations are acceptable in all the other states is a good question. For example, California law seems to indicate that they are acceptable, while New York has rules that prescribe that the notary and the signatory must meet face-to-face.
There is, of course, Article IV, Section 1 of the United States Constitution, known as the “Full Faith and Credit Clause,” which directs all states to respect the “public acts, records, and judicial proceedings of every other state.” So, I don’t know how New York voids a Virginia notarization under the Constitution, although I suspect a clerk might just do that and the case will not make it to the Supreme Court.
In sum, there may be something to worry about. Even if you use a Virginia service, your out-of-state notarization may be invalid. Who needs that hassle? I’d be happy to litigate the case up to the Supreme Court. However, saying that idea is less than cost-effective is like saying Syria has a law and order problem. So, just in case, get your document notarized in the right state. If you are overseas, there is always the US Embassy or Consulate. Of course, they charge $50 to notarize each document. But that’s the subject of another article.
Avrum Aaron, Esq. has been practicing law in New Jersey since 1994. He has never charged to notarize a document and won’t notarize out of New Jersey despite/because of what is written above. You can reach him at 054-398-4380 or 201-279-9230 or firstname.lastname@example.org.