Affidavits of service are common legal documents used during lawsuits. Find out more about what these documents contain and what you need to do next if you receive one.
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by Edward A. Haman, Esq.
Edward A. Haman is a freelance writer, who is the author of numerous self-help legal books. He has practiced law in H.
Updated on: October 31, 2023 · 4 min read
If you or your business become involved in a court proceeding, you will probably encounter a document called an affidavit of service. There are several versions of this type of legal document, and it is important to understand them so that you can comply with their terms.
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An affidavit of service is a particular type of affidavit. In general, an affidavit is a written statement made by a person who swears under oath that the statement is true. The document is signed by the person making the statement, as well as by a notary public or other person who is legally authorized to administer an oath, such as certain court and government officers.
An affidavit of service, also sometimes called a proof of service affidavit, is a type of affidavit that relates to legal documents that are filed with a court as part of a legal proceeding. When one party to a lawsuit files a document with the court, that party is legally required to provide a copy of that document to the opposing party, an action called serving the other party. For example, when a plaintiff files the initial complaint, a copy of the complaint must be provided to the defendant. When the defendant files an answer to the complaint, a copy of the answer must be provided to the plaintiff. An affidavit of service is then filed as proof that the document was provided to the other party.
Service can be made in several ways. For service of a complaint, which begins a lawsuit, the plaintiff must serve the defendant in one of two ways:
Once the defendant is served and files some form of response to the complaint, both parties have their addresses and other contact information on record with the court. Subsequent documents are then usually sent to the other party or their attorney by mail, which is known as service by mail.
Either state or federal law dictates how service must be made, depending upon whether the case is in a state or federal court. Typically, the following procedures are common.
A person who is being sued as an individual must be served by personal service. This is typically done by finding the person at their residence, place of business or employment, or any other place the person can be located. If the person is not present at their residence, the document may be delivered to a responsible family member of a state-determined minimum age.
A business entity that is being sued is personally served by delivering a copy of the complaint to the entity's registered agent, although it may also be permissible to serve an officer of a corporation, a member or manager of an LLC, or a partner in a partnership.
A trust may be served by delivering a copy of the complaint to a trustee or to a registered agent, if one has been designated.
In the case of personal service, the affidavit is signed by a process server, or person who delivers the documents. A process server is often a law enforcement officer but may also be a private process server.
In the case of service by publication, an employee of the newspaper signs the affidavit of publication.
For service by mail, the person who mails the document signs the affidavit of service. It may also be permissible for the party or attorney who files the document to simply add a statement called a certificate of service. Generally, an affidavit or certificate of service by mail does not need to be notarized.
Typically prepared by the process server, an affidavit of service form is often an official court form that can be obtained from the court clerk or various online sources. The document usually includes the following information:
After the documents are served, the process server signs the affidavit, has their signature properly notarized, and files the affidavit with the court. A person who signs an affidavit containing false information can be subject to criminal penalties.
It is important to understand that there are laws and court rules that specify the details for how service must be made and what type and form of document must be filed to verify proper service. If you decide not to hire an attorney, you need to be sure you understand the laws that apply to your case.
Find out more about Getting Legal HelpThis article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.
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