Affidavit of Service: Definition, Purpose & Example

Instructor: Kenneth Poortvliet
When the law requires court documents to be served on an opposing party, proof of service is required. An affidavit of service is an accepted method of providing that proof. In this lesson we will learn what an affidavit of service is and under what conditions it's used.

Proof of Service

Fran handed the judge the green return signature card from the post office along with her proposed divorce judgment. The do-it-yourself website said she'd need both when she went to court. The judge told her everything was in order except she didn't have proof of service. Fran tried to explain about the green card and the website, but the judge interrupted her and then continued the case for three weeks so she could provide proof of service. So what did she do wrong?

Simply put, Fran had proof she'd served her husband, but she didn't have legal proof of service. Proof of service is a legal term meaning a party to a lawsuit provided the court with evidence that they had lawfully served an opposing party. The rules governing service specify which type of proof of service is required under which circumstance.

Rules Of Civil Procedure

The Federal Rules Of Civil Procedure set the rules for federal court exclusively. Each state has their own set of rules, however, they are similar in content and each rule number is the same for all 50 states and the federal system. For example, Rule 4 of the federal rules deals with the issuance of the summons and the service of the summons and the complaint, which is the initiating document for every lawsuit. Rule 4 of every states' rules of civil procedure also deal with the summons and complaint although their requirements may differ slightly.

Rule 4 or Rule 5?

Rules 4 and 5 both deal with the service of court documents.

Rule 4 of the Federal Rules of Civil Procedure is titled, ''Summons.''

This rule details how a summons (a document that identified a lawsuit and the parties to it) is issued and how a summons and complaint (the document that initiates a lawsuit) must be served.

The complaint is filed and served along with the summons and service is by personal service which means hand delivered to the party by:

  • Anyone over 18 (21 in some jurisdictions) or
  • Any law enforcement official or any official permitted to complete process of service or
  • Any private process server permitted to complete process of service or
  • Registered or certified mail, delivery restricted to defendant (to prove it was handed to the party) or
  • By publishing legal notice in any qualified publication, but only if all above forms of personal service are unavailable.

Proof of Service:

  • If service by officer, then filing a Certificate of Service stating how service was accomplished.
  • If service by private party, then filing an Affidavit of Service stating how service was accomplished.

Rule 5 is titled, ''Serving and Filing Pleadings and Other Papers.''

Once a summons and complaint have been filed in accordance of Rule 4, then all subsequent court documents pertaining to that lawsuit (the rule lists all possible documents) can be served by:

  • Personal service per Rule 4 (including proof of service) or
  • Mailing the documents in the regular U.S. Mail and filing a copy along with a Certificate of Service

Which rule should Fran follow? Since states have jurisdiction over divorce cases, she would follow her own state's rules. Let's say Fran resides in North Carolina. Fran would use Rule 4 of the North Carolina Rules of Civil Procedure as she is serving a complaint and a summons. North Carolina's Rule 4 requires personal service which means that the party must be personally handed the documents or some form of substitute personal service as allowed by the rules.

So we now know what Fran did wrong. She did everything else correctly, but didn't provide the court with an affidavit of service as required under the rules. An affidavit of service would have provided a notarized statement to the court providing who made the service, which person was served and the manner and the date of service.

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