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Affidavit of service

This Agreement is entered by and between Jonas Adam, individually or collectively as the "Signee" and Jane Smith, as the "Signer", together referred to as the "Parties".
The Contract is dated [the date both parties sign].

1. Agreement terms

The Parties agree that the following agreement is dependent on the terms presented as follow:

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Affidavit of service

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What is an affidavit of service?

An Affidavit of Service is a legal document common in the United States that certifies that one party -- the process server -- affirms in writing that they have correctly served process on another party. 


“Served process” can mean several different things, but it most commonly means one person, the processor server, officially delivering certain documents to the target party. The affidavit of service essentially confirms to others that such documents were actually received by the target party. This affidavit is important because it and the documents that are delivered are generally court documents that begin a new legal action, either civil or criminal in nature.



What is in an affidavit of service?

While there are different official and unofficial formats and guidelines for affidavits of service, there are several common items that they all must contain.


Typically the affidavit contains basic information on how the process was served, such as:

  • The identity of the processor server or servers
  • The date, time, and location of the processes serving
  • How the process was served
  • Specifically which document or documents were served
  • Information identifying the party that was served



Why do you need an affidavit of service?

To understand why you need an affidavit of service, it helps to understand what a process server does, and to understand that you need to start with a little history. 


The service of due process is set forth in the Constitution itself. It basically means that all citizens of the United States of America have the right to be informed of court actions, such as being summoned to court. More specifically, the guidelines on service of due process are outlined in the Constitutions fifth and sixth amendments.


The Fifth Amendment reads:


“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

(https://www.law.cornell.edu/constitution/fifth_amendment)


While the Sixth Amendment elaborates on these rights, saying:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

https://www.law.cornell.edu/constitution/sixth_amendment


In serving due process, it’s not enough to just mail or email someone the documents. You must actually notify the individuals of their constitutional right to due process by physically giving them the notification of the legal issue that involves them, and confirming that they received it.


In earlier times in the United States’ history, local county sherrifs or other law enforcement officials were tasked with serving legal papers. However, as the United States population grew rapidly, it became harder and more expensive for these government officials to perform process serving alongside their other official duties. Process servers were devised as an alternative to these overworked and scare resources


So, what does a process server do? While their main job is to deliver or “serve” required legal documents to others, they also handle a variety of administrative and clerical tasks associated with those documents, including but not limited to filing court papers, keeping records, retrieving documents as needed.


Once the process server delivers a document on behalf of someone, they must then give that first person a document, known as the affidavit of service, confirming to that person and to courts, judges, and juries in the future that the target individual did indeed receive those documents. You can think of the affidavit is essentially evidence confirming that the target person received the documents as the processor server said that they did.


Since the affidavit of service is a legal document, the process server must be notarized by the process server and given back to the individual or company that requested that the documents be served in the first place. Process servers must follow specific rules and guidelines on how they prepare and serve the documents, as well as how they how they report on it and confirm the service once its done. Like many legal documents and processes, rules on process serving as well as the affidavit of service itself vary state by state.


What kinds of process service exists?

Service can be executed in several ways. For example, if an individual or company wishes to serve a complaint, which is a step required to begin a lawsuit, there are two options.


  1. Personal service of the process. This was discussed in detail above, but essentially the process server will need to hand deliver the legal documents to the individual or company. It’s important to note here that not only individuals, but also legal entities, such as corporations, limited liability corporations (LLCs), a partnership, or a trust can be served. Even non profit corporations can be served!
  2. Service by publication: sometimes it can be difficult or impossible to find an individual to serve them the documents, especially if they don’t want to be found. That’s where service by publication comes in. This is an option that requires the judge who is overseeing the case to approve. It is often only approved is personal serve has been tried and has not succeeded. In this case, the notice will be published in a newspaper and that will stand in for the servicing. Once the notice is published, an affidavit of publication, rather than an affidavit of service, is filed and accomplishes the same thing.



How do you make an affidavit of service?

Often times the individual or company that is the process server will provide the affidavit of service to you. However, there may be cases where you want to create your own, or compare the one they provide to another template so you can ensure it meets your needs.


What are the state by state rules for an affidavit of service?

That’s a great question! Affidavits of service are covered under specific laws for each state. If you’re in California, for example, you’ll likely have a slightly different affidavit of service than if you were in New York. This is because each state in the US has slightly different laws on how affidavits are created and must be served to be valid. Like most other legal documents, it’s important to know which state you want the affidavit to be used in, to ensure it’s valid when you use it. 


Where can I find more information about how to create and file an affidavit of service or an affidavit of notice?

Great question! The information specific to the affidavit you’re looking for will depend alot on the state you’re located in and in what context / for what legal action you want to file the affidavit. This is because, as mentioned, each state will have different rules, requirements, and procedures on how to file an affidavit that’s valid. It’s important to follow these state-specific rules to the letter, since the affidavit you file and any legal action or actions resulting from it may be invalidated if the affidavit is served or certified incorrectly. You should talk to your lawyer or a process server who will have information and experience on what makes a valid service process. In some cases, you can find information on the websites of the individual states, such as the one from New York here: https://www.nycourts.gov/CourtHelp/GoingToCourt/affidavitService.shtml


What else is an affidavit of service known as?

There can be several different names for it, depending on where and how it’s used. We recommend you check the description of affidavits of service at the top of this page to double check that you’re using the right document.


Some other common names for it are:

  • Proof of Service
  • Evidence of Service of Process
  • An Affidavit of Service of Process, or an Affidavit to Evidence Service Process
  • A Service Affidavit, or a Service of Process Affidavit