An affidavit of service is a sworn statement of an individual about having served a document to another person or entity. The most common situations where an affidavit of service is used is in court proceedings when participants of a court process send documents to each other.
The main function of the affidavit form is to prevent claims of the opposing party from getting a document from you. Consequently, an affidavit of service helps to avoid delays in court proceedings that might result in significant time and financial expenditures.
When filing legal documents with the court, a party faces the legal requirement to serve a copy of the same document to the opposing party. This procedure is called serving the other party in the court process. As an example, let’s take a situation where a plaintiff wants a complaint to be filed with the court. The defendant, regardless of whether it is a business entity or an individual, should get a copy of the complaint. Then, when the defendant provides a response to the complaint, a copy of the response should be sent to the plaintiff. In both cases, an affidavit of service is needed as it helps both parties prove that the opposite party was delivered with the important legal document and they cannot claim it has never happened.
It is crucial to remember that if an affidavit of service contains untruthful information, a person signing it might face criminal penalties.
Legal documents can be served in several ways:
Interesting fact: in Canada, in situations where a defendant cannot be found by their physical address, it is possible to legally serve papers via Instagram (according to the Canadian lawyer magazine).
The way the affidavit of service will be served depends on state and federal law and whether a lawsuit is started in a state or federal court. It also typically depends on who has to be served with legal documents.
For instance, individuals are typically served by personal service. The first thing for a process server to do is to find the individual at their place of living, work, or doing business. It might also be another place where a person can be located.
When it comes to business entities, they should be served by delivering legal papers to an official registered agent of a company. However, in certain situations, a document might be delivered by a process server to an officer of a corporation, a member of a limited liability company, a partner if an entity has the form of a partnership, or a trustee in a trust.
It is common for a licensed process server to have their own affidavit of service forms and prepare them themselves, but it is easy to find the form online on the website of the court or obtain it from a court clerk. You can also use our online affidavit of service template that can be easily filled in by using our instructions.
An affidavit of service should necessarily include the following elements:
After the service of the legal papers, an affidavit of service is signed and notarized. Then, it is filed with the court.
An affidavit of service is a one-page form that is easy to create and fill out. But despite the easiness, it should be written very carefully as any untruthful information in the affidavit of service might lead to criminal penalties for a signing party.
Step 1 — State and county
In the top left corner of the affidavit of service, insert the state and county of your residence.
Step 2 — Statement of service
Next, the affidavit of service should tell that a person delivered certain legal papers to the recipient. The following words might be used: «[Name of the authorized server] states that on the [Date of serving the papers] he/she caused to be served the attached documents.» After that, a legal document or documents that were delivered to the person should be listed in the affidavit of service.
Step 3 — The recipient
Further, the name of the recipient should be included in the affidavit of service. The following wording might continue the previous sentence «…upon the below-named party, by placing a true and correct copy in an envelope addressed as follows…”.
Please note that the law of the states such as California, New York, Illinois, and many others require that if legal papers were delivered to a family member, that is, by substituted service, the documents should also be mailed to the recipient. Then, the affidavit should also say: “…by placing a true and correct copy in an envelope addressed as follows… and depositing the same in the United States mail at [name of the city], [name of the state].» Then, the affidavit should specify the mailing address of the recipient.
Step 4 — Sworn statement
The last paragraph in the affidavit of service should be a sworn statement of the delivering party about the information provided in the affidavit of service being true. It is typical to use the following wording in the affidavit: “I declare under penalty of perjury that everything I have stated in this document is true and correct.”
Step 5 — Signature
The date and signature of the delivering party along with their print name should finish the affidavit, whether it is a process server or another person authorized to serve legal papers.