Understanding your affidavit of service

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.

Purpose of an affidavit of service

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.

Types of service

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:

1. Personal service. This is when an individual or some type of legal entity is hand-delivered a copy of the complaint, along with a summons that notifies the defendant what must be done to reply. A legal entity, whether for-profit or nonprofit, may be a corporation, a limited liability company (LLC), some form of partnership, or a trust.
2. Service by publication. This is when a notice of the complaint being filed is published in a newspaper. This option, which requires the approval of the judge, is permitted only if personal service is not effective because the defendant cannot be located. After publication, an affidavit of publication, rather than an affidavit of service, is filed.

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.

Who gets served

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.

Who signs the affidavit of service

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.

Affidavit of service form

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:

• The name of the person served
• The date, time, and place the person was served
• The manner in which the person was served
• A description of the document or documents served
• The name and signature of the process server

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.