An Affidavit of Service is a document detailing the service of a notice, summons, writ, or other court processes. In a court case, the document can be presented to show that papers were delivered to the opposing party if they claim to have not received the notice.
What is an Affidavit of Service?
An Affidavit of Service is a sworn legal document stating that a server delivered specified papers to a person, organization, or business as requested by a party to a lawsuit. When the service of documents is to a group of people, for example, a club, business, or association, delivery must be made to the organization’s registered agent.
An Affidavit of Service form is often used in lawsuits or other court proceedings when a person or other party needs to receive a legal document. Using a Service Affidavit can prevent the opposing party from pretending they did not receive a given legal document, which could delay important court proceedings.
The Affidavit of Service must identify who is being served, and the time, date, and location where service occurs. Once the affidavit is complete, it should be filed with the court, along with a copy of the served papers.
As a reference, people often refer to an Affidavit of Service as “proof of service.”
A simple Affidavit of Service will identify the following elements:
- Jurisdiction: the court that has the authority to hear civil cases and make judgments based on the information presented.
- Civil Lawsuit: a claim filed with a court that states that one person has been harmed or otherwise suffered a loss due to the actions of another person.
- Plaintiff: the person who files the lawsuit
- Defendant: the person who the lawsuit is filed against
The person delivering the papers is commonly referred to as the server or process server. A process server can be:
- A person appointed by the court to serve court documents as required
- A person licensed to work as a process server
- A person hired by a party to the lawsuit to deliver court documents on their behalf
For every service of process, you will pay a fee, and the cost will depend on how quickly you need service and the ease or difficulty in locating the person to be served. In some jurisdictions, you may be able to use the county sheriff’s office to act as a process server, which may or may not require a fee.
When hiring a process server, you should compare rates and select someone with a reputation for reliability.
When an Affidavit of Service is Needed
An Affidavit of Service is needed whenever proof of delivery of court documents is required by law. Most courts require proof of service in every instance where legal documents related to a court case are sent to another party. For example, state courts require an Affidavit of Service in New York whenever legal papers are delivered in a lawsuit.
An Affidavit of Service is required in state and federal courts and is most often needed when there is an exchange of important documents between the parties. This can include:
- A Summons: an order to appear in court
- A Complaint: a document filed by a plaintiff, which details the harm they have experienced due to the defendant’s actions
- An Answer: a document filed by the defendant challenging the plaintiff’s claims
- A Cross Complaint: a document filed by a defendant claiming harm experienced due to the actions of the plaintiff
- Divorce Papers: the documents that detail a spouse’s intent to divorce and accompanying papers
- Foreclosure Notifications: the documents filed by a lender informing the mortgage holder that they are in default and the lender is seizing the property.
- Motions: actions a party requests the judge to take, for example, a motion to dismiss
- Orders: a written decision by a judge that impacts the court case, for example, a child custody order
An Affidavit of Service is necessary to prove the delivery of these documents.
Even if it is not required, you can still use an Affidavit of Service to prove that you have delivered information to the other party. For example, in a contentious custody battle, you can use a process server to deliver a child’s music, dance, or sports practice schedule to the other parent. The accompanying Affidavit of Service will prove that they received it.
Consequences of Not Having an Affidavit of Service
When there is no Affidavit of Service, or the affidavit is incomplete and therefore unlawful, the person required to prove service can face severe consequences. Failing to prove that documents were sent to the opposing party can result in:
- Dismissal of the case
- Judgment for the other party
- A party being found in contempt of court
- Loss of property, custody rights, and other significant damages
- Suspension or postponement of proceedings
As a result, the person who fails to prove service of documents, as required by law, may face severe legal and financial consequences. A contempt of court charge may also include a jail sentence.
Always request a copy of the completed and filed Affidavit of Service from the process server, even if you have to pay a small fee.
Common Uses for an Affidavit of Service
An Affidavit of Service is used in nearly every civil legal matter and is often required by law. The affidavit is used to prove delivery of documents to the opposing party in a variety of lawsuits, including but not limited to:
- Personal Injury
- Medical Malpractice
- Real Estate Disputes
- Professional Misconduct
- Business Disputes
Starting with the initial service of the complaint, an Affidavit of Service is a vital component of legal proceedings.
Your attorney may have a preferred process server, but you don’t have to use that person. Hiring your own server may save you money.
How To Fill Out An Affidavit of Service
Step 1 – Fill in Process Server Details
When you’re writing an Affidavit of Service, you need to first begin by providing the name and address of the ‘process server’:
What is a process server?
A process server is someone who delivers court orders or other legal documents to a party in a legal proceeding.
The documents must either be directly delivered or sent to a place of business, residence, or given to the agent of a party. Please pay attention to the rules of your state and court as they will describe the official process for this.
Who qualifies as a process server?
In many states, any US citizen that is not a party to the case, over the age of 18, and residing in the state where the matter is to be tried in court can serve papers. Please confirm the law in your local jurisdiction to ensure you are qualified to act as a process server.
Step 2 – Include information on the service
You need to be as specific as possible to avoid any ambiguity that can negatively impact a court case. Provide the following details:
The papers that were served
- For example, a subpoena, complaint, or summons.
Where the papers were served
- Write down the full address
- The date of service
- The name of the individual or entity that was served
How the papers were served
- Specify whether:
- a true copy of the documents was delivered personally to the individual or entity
- A true copy was deposited in a postpaid properly addressed envelope at a postal office or official depository under the exclusive care and custody of the United States Postal Service.
- Or both of the above
- Specify whether:
Step 3 – Notarize the Document
Provide the county and state where the affidavit was notarized. You should always notarize affidavits. However, you can fill in this information manually at a later time.
What Should Be Included in an Affidavit of Service?
To be valid, an Affidavit of Service must include:
- Case Reference: the lawsuit parties’ names and case number
- Court: where the action is filed
- Recipient: the name and description of the person who is served and receives the documents
- Documents: a list of what papers were delivered
- When: the date and time the documents were delivered
- Where: the precise location where service occurred
- Server: the full legal name of the person delivering the documents
- Oath: evidence that an appropriate party has administered oaths and received confirmation
- Signatures: signatures of the server and notary or other official accepting the affidavit
If any of these elements are missing, the opposing party can challenge the validity of the service, and you could miss important filing deadlines. As a result, your case could be dismissed, or a judgment could be filed against you.
Sample Affidavit of Service
Below is a sample affidavit of service form available in PDF or Word format.
State of __________ County of __________ I, the undersigned, being duly sworn, hereby affirm that: ☐ Delivering a true copy of the aforesaid documents personally; I knew said party so served to be the party described. ☐ Depositing a true copy of the aforesaid documents in a postpaid properly addressed envelope at a postal office or official depository under the exclusive care and custody of the United States Postal Service. NOTARY ACKNOWLEDGMENT The foregoing instrument was acknowledged before me this _______ day of __________________, 20_____, by the undersigned, __________, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument. _____________________________________ Signature _____________________________________ Notary Public My Commission Expires: ________________
State of __________
AFFIDAVIT OF SERVICE
Signature of Process Server
State of __________
County of __________
State of __________
County of __________
I, the undersigned, being duly sworn, hereby affirm that:
☐ Delivering a true copy of the aforesaid documents personally; I knew said party so served to be the party described.
☐ Depositing a true copy of the aforesaid documents in a postpaid properly addressed envelope at a postal office or official depository under the exclusive care and custody of the United States Postal Service.
The foregoing instrument was acknowledged before me this _______ day of __________________, 20_____, by the undersigned, __________, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument.
My Commission Expires: ________________
Affidavit of Service Frequently Asked Questions
Does an Affidavit of Service need to be notarized
Yes, an Affidavit of Service needs to be notarized. Like all affidavits, notarization is required to ensure that the individual is attesting information without coercion or undue influence and who they say they are.
What is the difference between a certificate of service and an Affidavit of Service?
There is no difference between a Certificate of Service and an Affidavit of Service other than the name. Both documents achieve the same goal as certifying that you have served a document upon somebody. The terms are interchangeable, and it is often a matter of preference which one is used in a given situation.
Can you serve court papers by mail?
Yes. In most states, you can serve legal papers by sending them to the defendant via certified mail, restricted, return receipt requested delivery through the USPS. Some states even require you to attempt service by certified mail before other methods of service. You still need to execute an Affidavit of Service, attach the return receipt, and file it with the court to confirm valid service.