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What Is an Affidavit of Non-Service?

Mary McMahon
By
Updated May 16, 2024
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Navigating the complexities of legal document delivery, an affidavit of non-service emerges as a crucial tool when standard procedures hit a wall. According to the American Bar Association, the process of serving documents is foundational to upholding due process, yet in 20% of cases, initial service attempts fail. An affidavit of non-service is a sworn legal statement indicating that a person was unable to serve a legal document. 

This sworn statement meticulously records the unsuccessful attempts to serve legal papers, detailing the dates, times, and methods employed. By providing this evidence, the affidavit of non-service ensures that the legal process maintains its integrity, even when direct contact proves elusive.

People tasked with serving legal documents can include law enforcement officers, as well as private process servers. In both cases, people are expected to locate the subject of the document and personally deliver it. Some steps may need to be taken, such as tracking down a forwarding address or finding out where a person works. If an initial attempt at service fails, it must be attempted again. Process servers may ask friends and neighbors for help when attempting to locate someone with the goal of successfully serving the paperwork.

If, despite trying to serve the document in every reasonable place and at a variety of times, and the process server deems it undeliverable, an affidavit of non-service is filed. The affidavit names the process server and provides contact information before listing the details of service attempts and explaining why they failed. A server might note that a neighbor said the subject moved without leaving a forwarding address, for instance, or that an employer indicated a person was no longer employed.

In the affidavit of non-service, the process server documents the due diligence used to try to find the subject of the document. Depending on the type of case involved, various legal actions can be taken, including moving forward with the case and potentially entering a judgment against the subject in absentia.

Process servers try to avoid situations where they end up having to file an affidavit of non-service, as this can make a case more difficult to handle in court. They are allowed to use a variety of techniques when tracking people down to serve legal papers, and sometimes it can take several weeks to successfully locate someone, especially if that person is actively attempting to avoid the process server. It is advisable for people to leave forwarding address and work information when they move to avoid cases where a process server tries to reach them and fails, allowing court proceedings to move on without them.

Does an Affidavit Have To Be Notarized?

Finding someone to notarize your affidavit can be a hassle and cost money, and you might be wondering if it's necessary to get that notarization at all. Each state has its own rules as to what's valid. Still, it's always a good idea to get your affidavit notarized.

Sometimes you can get around this by preparing an unsworn declaration, stating in writing and under oath of perjury that you are who you say you are. However, if you're providing a sworn affidavit of non-service, it needs to be signed in front of a notary. An affidavit is considered evidence in court cases, and if it doesn't have that notary seal, the judge will often reject it.

The Importance of Honesty

Creating an affidavit is similar to offering testimony in court. If you have prepared an affidavit of non-service, or someone else has written it up for you and you sign it (which means in legal terms that you are the affiant), you are bound by your statement in that document.

Likewise, signing an affidavit is just as serious an undertaking as testifying in court. You don't want to lie under oath, which is perjury and can lead to dire consequences, including jail time. In the same way, signing an affidavit with false or misleading information can lead to obstruction of justice and could mean prison time for you.

The Necessity of Notarizing

This is why the notary is a crucial part of the legal process. Depending on the state in which they live, notaries take special training to prepare them for their role as public servants and are required by state law to ensure that the papers they notarize are accurate and actually endorsed by those who are supposed to be signing those documents. They are relied on by the court system to prove the validity of the affidavits entered into any court case.

Without the seal of a notary public, there's no proof that you're the one who signed the document. Anyone could write up an affidavit and then forge your name on it, and for that reason, such papers that aren't notarized can be thrown out of court. A notary public will ask to see proof of your identity, typically a driver's license or a passport, and then sign an oath stating that you are truly the one who inked the document.

Why Is Notarization Required?

Affidavits are useful because going to court can be expensive and difficult for everyone involved. For the person testifying, it can mean taking off from work and spending hours at the courthouse. For the attorneys as well as the judge and possible jury, it means additional time listening to live testimony. Introducing affidavits helps streamline the process and saves time and money for everyone involved.

Proving Your Identity and Willingness To Sign

Although it might not always be the case, signing an affidavit of non-service might enable you to avoid a court appearance to swear in person that you were unable to serve a legal document. However, because the judge and jury can't observe you as you testify, it's important that a notary swears that you signed the affidavit of your own free will and that you haven't been forced to sign that document.

Likewise, the notary also swears an oath that you know everything in the affidavit that you're signing. Again, this goes back to the idea that you're not being forced, or in this case, duped into signing something that you shouldn't. It's in the notary's best interest and your own to make sure you have read the entire document and understand all of the contents within.

Confirming Your Accountability

As an important functionary in any civil or criminal case, the notary often stands in your place, testifying that you're of sound mind and that everything in the affidavit is true to the best of your knowledge. In the same way that courts hold you accountable for every sentence in your affidavit, your notary is also bound by the oath made on that paper. As well, just like you, the notary can face prison time if willfully notarizing a document that is false in some manner. That's what gives a notarized affidavit its validity in court.

While you may be tempted to avoid the effort of finding a notary, it's always a good idea no matter where you live to get your affidavit of non-service notarized. Think of it as a strong defense to keep you from facing fines, community service or even jail time.

FAQ on Affidavit of Non-Service

What is an affidavit of non-service?

An affidavit of non-service is a legal document sworn by a process server or individual responsible for delivering legal documents, stating that they were unable to serve those documents to the intended recipient. This affidavit provides a detailed account of the attempts made to serve the papers, including dates, times, and reasons for the failure of service. It is used to inform the court of the difficulties encountered in serving the documents, which can influence the court's decisions on how to proceed with the case.

When would you need to use an affidavit of non-service?

You would need to use an affidavit of non-service when you have made reasonable attempts to serve legal documents to an individual or entity as part of a legal process, but have been unsuccessful. This situation often arises in cases where the recipient is evading service, cannot be located, or is absent from their usual address. The affidavit serves as evidence to the court that service was attempted but not completed, which may lead to alternative methods of service being authorized.

What are the consequences of filing an affidavit of non-service?

Filing an affidavit of non-service can lead to several consequences. The court may grant an extension for service, permit alternative methods of service such as publication in a newspaper or posting on the property, or in some cases, may even allow the case to proceed without service. However, it's important to note that the affidavit must demonstrate that due diligence was exercised in attempting to serve the documents, otherwise the court may not accept it.

How does one prove due diligence in an affidavit of non-service?

To prove due diligence in an affidavit of non-service, the person attempting service must detail all the efforts made to serve the documents. This includes the dates and times of attempted service, the methods used, descriptions of the premises visited, inquiries made to locate the recipient, and any other relevant actions taken. The more thorough and documented the attempts, the more likely the court will be convinced that due diligence was exercised.

Can an affidavit of non-service be contested?

Yes, an affidavit of non-service can be contested, especially if the recipient of the documents believes that they were not properly served or that the process server did not make a genuine effort to serve them. If contested, the court may require additional evidence or testimony to verify the claims made in the affidavit. It is crucial for the affidavit to be accurate and truthful to withstand scrutiny and avoid penalties for perjury.

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Mary McMahon
By Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

Discussion Comments

By drtroubles — On Aug 08, 2011

@letshearit - In some states you can actually automatically lose a lawsuit or be sent to jail for intentionally ignoring legal papers, or even just not being around to get them. Pretty much if you get that affidavit of non-service it is pretty hard to argue that you were willing to get the papers because a process server, the person delivering the papers, will more than likely try just about everything to get them to you.

A lot of process servers speak with neighbors, call any known acquaintances, contact any listed places of work, just to find you. Once you have been listed on an affidavit of non-service things can only go badly from there on in my opinion.

By letshearit — On Aug 08, 2011

You really don't want someone to file an affidavit of non-service against you, especially in a lawsuit because it can mean that a judgment can be made without you giving your side of the story.

A good example of this is is you are in breach of some sort of contract and don't fulfill your part of the bargain. If the person you were dealing with were upset enough they could sue you for damages.

The court would see to it that you were served with papers letting you know what is happening. If you don't get these papers, no matter how much you say you were just unavailable, the court generally views this is avoidance and can file in favor of the party that has actually showed up to fight. Just ignoring legal matters doesn't make them go away.

Mary McMahon

Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a...

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