An Affidavit of Service is a legal document used to prove that someone received a legal document from another party. Affidavit of Service forms are most commonly used in lawsuits or other court proceedings when it’s essential for a person or other party to receive a legal document.
By using a service Affidavit, you can prevent the opposing party from pretending they did not receive a given legal document, which could delay important court proceedings.
1. What is an Affidavit of Service?
An Affidavit of Service is a sworn legal document that states that a server delivered specified papers to a person, organization, or business as requested by a party to a lawsuit. When service of documents is to a group of people, for example a club, business, or association, delivery must be made to the registered agent of the organization.
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 papers that were served.
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 judgements based on the information presented.
- Civil Lawsuit: a claim filed with a court which states that one person was been harmed or otherwise suffered a loss due to the actions of another person.
- Plaintiff: the person who files the lawsuit
- Defendant: the person against whom the lawsuit was filed
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.
Sample Affidavit of Service
The sample affidavit of service below details a record of a service provided by ‘Adam B Lara’ and served unto ‘Rosalinda L Wellman’. In the affidavit, Adam B Lara provides the date of the service, as well as verifies that the person he served a subpoena upon is indeed Rosalinda L Wellman by describing her physical appearance.
2. 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 delivery of these documents.
3. 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
- Judgement 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, faces severe legal and financial consequences. A contempt of court charge may also include a jail sentence.
4. 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.
5. What to Include 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 judgement could be filed against you.