Can Divorce Papers Be Served Through Facebook?
When one spouse files for divorce, proper legal service of divorce papers can be complicated when the address of the other spouse is unknown. Newspaper legal notices are the traditional service alternative in cases where the defendant spouse can't be located. But a new trend is emerging in which courts are permitting legal service on hard-to-find spouses through their potentially much easier-to-find Facebook accounts. Could starting the divorce process now be only a Facebook message away?
Establishing Substituted Service of Process
In New Jersey, a spouse seeking a divorce can ask the court for permission to use a "substituted service" of process as an alternative to in-person service by the Sheriff or process server when difficulties tracking down their spouse are encountered. Generally, substituted service options in the past have included locating a third party (i.e., a friend, relative or coworker) who can give the summons and Complaint for divorce to the defendant, or service by publication, usually in a newspaper where the action is filed.
Before the court will allow an alternate method of service, however, the plaintiff mush complete and submit an Affidavit of Diligent Search, which demonstrates to the court specific efforts that were used to attempt to locate the spouse. Such efforts can include sending letters of inquiry to family members, friends or employers who may know the whereabouts of the spouse. Plaintiffs can also search the Division of Motor Vehicles, the US Post Office or voter registrations. All of these efforts require time, extensive paperwork and considerable expense, especially if publication in the newspaper is utilized. Publication can cost hundreds of dollars and there may be no reliable way to know the person saw the newspaper notice.
Service of Process in the Digital Age and Baidoo v. Blood-Dzraku
When it comes to legal service through more modern means, the courts seem ready to embrace that in today's world, our online "home address" may be just as a valid as a physical address. In the groundbreaking New York State decision of Baidoo v. Blood-Dzraku (2015), the court noted that, “....as recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of summons by email. Since then, email has all but replaced ordinary mail as a means of written communication. And, while the legislature has yet to make email a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternative service.”
Significantly, the Baidoo court went even further: “It would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.” As part of making her case in this matter, the wife proved that she had exhausted all other methods of service of process and showed the court that she and her husband had recently exchanged messages on Facebook. She also showed the court photographs from her husband’s Facebook page verifying that it was indeed his account. And, she demonstrated by dates contained in his posts on his page, that her husband logged into his account fairly regularly. The frequency with which he logged in was important, as the court had ordered the wife to post the notice of the divorce on his wall three times at weekly intervals.
The wife’s actions, attempts, and evidence proved sufficient for the New York court and as a result, she was permitted to serve her husband on Facebook. Service was made quickly and efficiently once she obtained the court’s permission to serve him in this fashion.
Facebook Service in New Jersey
In the Baidoo case, the alternative service of process was permitted because of a New York Rule that allows a court to order any method of service that fits the particular circumstances of the case at hand, after a plaintiff demonstrates that other options for service are “impracticable.” New Jersey Court Rules similarly provide that if service cannot be made by any mode specifically provided for in the rules, the court can order another type of service, consistent with due process of law. Due process requires that any method of service that the court orders be reasonably calculated, under all circumstances, to notify the defendant that there are legal proceedings pending in court against him or her. If a plaintiff can show that service of process through Facebook can reasonably be used to effectuate proper service, there is no reason why a New Jersey court should not permit service in this fashion.
Of course, Facebook may present privacy issues, but so does publication of notice of the divorce in the newspaper, which arguably provides no privacy to a defendant. How do you know if Facebook is a viable alternative for service of process? One tip for plaintiff spouses: Consider remaining connected to your soon-to-be ex on social media until you have confirmation that the divorce papers were properly served upon him or her.
While still not widely used, service of process through social media is becoming more and more popular in matrimonial cases. It is certainly a less expensive and arguably easier method of service of process than hiring a process server or publishing the notice in a newspaper. Just be ready to show proof that a diligent effort was made to carry out traditional service in order for the courts to agree to this very 21st-century method of service.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.