An affidavit of service (or proof 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. In a court case, it can be presented to prove that the opposing party received the papers.
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 legal and financial 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 (may also result in a jail sentence).
- Loss of property, custody rights, and other significant damages.
- Suspension or postponement of proceedings.
What to Include
Using an affidavit of service can prevent the opposing party from pretending they did not receive a given legal document, which could delay important court proceedings. To be valid, the document must include:
- Case reference: The lawsuit parties’ names and the case number.
- Court: Where the action is filed.
- Defendant: The person who the lawsuit is filed against.
- Plaintiff: The person who files the lawsuit.
- Server: The full legal name of the person delivering the documents.
- Documents: A list of what papers were delivered.
- When: The date and time the documents were delivered.
- Where: The precise location where the service occurred.
- Oath: Evidence that an appropriate party has administered oaths and received confirmation.
- Signatures: The server, notary, or other official accepting the affidavit must sign.
Common Uses for an Affidavit of Service
An affidavit of service is generally used for:
- Summons: An order to appear in court.
- Complaints: A document filed by a plaintiff that details the harm they have experienced due to the defendant’s actions.
- Answers: A document filed by the defendant challenging the plaintiff’s claims.
- Cross complaints: 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.
How to Write
Follow the steps below if you want to know 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.
A process server is someone who delivers court orders or other legal documents to a party in a legal proceeding.
Step 2 – Include Information on the Service
You need to be as specific as possible to avoid 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 (delivered personally or 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).
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.
Affidavit of Service Sample
Below is a sample affidavit of service form available in PDF or Word format.
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.