Understanding an Affidavit of Service

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 What is an Affidavit?

Affidavits are legal documents which contain written sworn statements. Individuals may be asked to sign affidavits when they need to verify or certify certain facts which they said are true and legally enforceable.

An affidavit is often used in family law cases and bankruptcy cases. They may, however, also be used in different types of criminal cases and civil cases.

In order to draft valid affidavits, there must be certain elements present. An affidavit must contain a title which states what the affidavit is about and includes the individual’s name.

If an affidavit is being submitted to a court for a specific matter, the title must also state the relevant case caption. The case caption is the case number or other identifying information.

An affidavit is required to contain a statement of identity. This is a statement which lists information about the individual who is making the sworn statement.

A statement of identity should include certain details, including:

  • The individual’s:
    • name;
    • address;
    • age;
    • occupation; and
  • Any other information which is related to the issue.

For example, if an individual is offering an alibi for a defendant in a criminal case, then they would need to incorporate facts regarding their relationship with the defendant, possibly, additional details. In the alternative, if the individual making the affidavit is a law enforcement officer who is supplying an affidavit to support a complaint, their statement of identity should include their credentials.

The most important portion of the affidavit is the declaration, or oath statement. This must include the individual’s name and be written in the first person.

In other words, “I, (the individual’s name), hereby certify that the following facts are true to the best of my knowledge.” it is important to remember that an individual who lies in an affidavit may be prosecuted if they commit perjury.

The affidavit should also contain a section which states all of the facts which the individual is alleging. For example, if the individual is providing an alibi, this section would contain that information.

The affidavit must also be signed in front of a witness as well as notarized. The notary may qualify as a witness depending upon the type of affidavit and the state laws.

In addition, if the affidavit refers to exhibit documents, those are required to be notarized and signed as well. It is important to remember to bring a form of identification, typically a driver’s license, so that the notary can confirm that the individual making the affidavit is who they claim to be.

It is important to be aware that these elements are a general overview of affidavit requirements and may not contain all requirements for a specific jurisdiction. It may be helpful to consult with a local attorney if an individual is drafting their own affidavit to ensure that they meet all of the local requirements.

An affidavit is similar to a sworn statement, the distinction being that the affidavit has been:

  • Signed;
  • Witnessed; and
  • Certified by a public official, typically a notary public or a court official.

Both an affidavit and a sworn statement can be entered as evidence in court.

Can You Prepare Your Own Affidavit?

As noted above, an individual is permitted to create their own affidavit in most situations. There may be, however, certain scenarios where the law or the court may not permit it or may provide instructions regarding how to prepare an affidavit.

For example, in some jurisdictions, an individual who drafts their own affidavit may be required to do so in front of a special witness. Affidavits are required to comply with specific requirements under both state and federal laws.

These documents should be drafted using clear and unambiguous language. In addition, the statements that are made in the affidavit will be binding and may create issues if the individual does not understand the ramifications or if they make an error in the document for which they are now liable.

Signing an affidavit is the equivalent of swearing an oath in person in front of a judge and, therefore, may have serious consequences. Because of this, it may be in the best interest of an individual to hire a professional, such as an attorney or affidavit preparer, to assist them with preparing the affidavit.

Generally, attorneys will be familiar with how to property draft affidavits and will know the rules of the area. In addition, an attorney can provide advice regarding the consequences if the affidavit contains a false statement and the individual signs off on it.

What is an Affidavit of Service?

An affidavit of service is a legal receipt which confirms the delivery of documents from one party to another party in legal matters. The delivery of these types of documents is known as service of process.

The purpose of service of process is to inform a party that a lawsuit has been filed or is pending. The affidavit of service is the server’s testimony that they served the documents to the proper party and can be used as evidence if the defendant claims otherwise.

What is Contained in an Affidavit of Service?

The affidavit of service should contain the following information:

  • Time of service;
  • Date of service;
  • Manner of service;
  • Identity of person served; and
  • Any other pertinent details of the job.

These details serve as proof that the individual was served the documents. This is the reason why numerous states call this type of affidavit a proof of service.

When are Affidavits of Service Used?

Affidavits of service may be used at any time when proof is needed that legal documents were delivered to a party. For example, in family law cases, this may include:

  • Service of divorce papers;
  • Service of child custody orders;
  • Service of spousal or child support orders; and/or
  • Service of other urgent matters.

In certain cases, an affidavit of service may be used in court proceedings where one party denies that they received documents. If the individual denying receipt is found to be lying, they may face perjury charges.

Do I Need a Lawyer for Help with Affidavits of Service?

Although forms to complete an affidavit may be found on a court website, there are certain situations where it is likely best to consult an attorney prior to drafting the affidavit. This may occur when the case involves complex legal issues or if an individual does not understand the requirements for a specific type of affidavit.

As previously noted, creating an affidavit which includes details that are false may have serious legal consequences. Therefore, if you have any issues, questions, or concerns regarding drafting an affidavit, it may be helpful to consult with a local attorney.

An attorney can inform you of the laws in your state, the requirements for creating a valid affidavit, and the consequences for supplying false information. Your attorney can also assist you with preparing, drafting, reviewing, and/or editing an affidavit and can assist you with submitting the affidavit or may submit the affidavit on your behalf.

If you have a case in which you need to serve papers, it may be helpful to consult with a family lawyer to ensure you are taking the proper steps. An affidavit of service may be a critical piece of evidence in your case, especially if the defendant is claiming they never received the documents.

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