Serving Divorce Papers Via Facebook

Divorce laws vary from state to state with regard to service of the original divorce complaint. Most states require some type of personal service or delivery to the defendant due to the fact that such action has a high degree of importance to both litigants. But this could change in certain cases.

What the Courts Say

A recent ruling by the Supreme Court of New York has provided a whole new outlet for family law litigation centering on social media and the service of process in divorce, custody and support cases. Baidoo v. Blood-Dzraku, decided on March 27, involved a case where the wife, in a short-term marriage, could not find the husband and had no idea where he was currently residing. The parties had married in 2009, but never resided together. The defendant's last known address had been an apartment where he was residing, but which he left in 2011. When the parties last spoke via telephone, according to the opinion, the husband told her that he had no fixed address and no employment. She wanted him to make himself available to be served with a divorce complaint, but he refused. The wife hired investigators to find him, but to no avail. The husband had no forwarding addresses and he was using a prepaid cellphone. The court found that personal delivery of the complaint upon the husband was not possible.

The court also said that alternative service methods would also be futile, since no home or business address of the defendant was known. The wife had made a case for seeking alternative service.

Now that the wife had met the burden of proof that she may serve the husband by alternate service, she needed to next satisfy the court that her proposed method of service would be reasonably calculated to allow the defendant to know that he was being divorced. The court then explained that there are only a small number of cases that allow service via social media. But that is precisely what the wife proposed.

The court explained that the wife's proposal is a sharp departure from all traditional rules of what constitutes service of process as it is usually understood by practitioners. The court then explained that a new way of doing something should not be rejected just for being a departure from the norm. The court said that where technology intersects with the law, it is there that new concepts may well become the norm in the near future. The court added that because legislatures often lag far behind technological advances, it is even more important that the courts intervene and assist practitioners and parties with answers to these legal dilemmas. Legal procedures must keep pace with technological advances.

Can a Spouse Serve a Divorce Complaint Via Social Media?

Ultimately, the court considered and ratified the basic assumption: If a wife serves a husband a divorce complaint via Facebook message, is there a good chance that he will receive it? In order to determine this, the court required proof that the Facebook profile the wife purported to be her husband's actually belonged to him. In this matter, the wife accomplished this by affidavit accompanied by copies of exchanges between the husband and wife on the husband's Facebook page.

Second, the court felt that the wife must prove that the husband actually logged into his Facebook page regularly enough to actually receive the divorce complaint. She proved this by reference to a number of regular exchanges with him on Facebook over a short period of time. She also showed that if all else failed, the wife or her counsel would be able to leave a voice message or text the husband, alerting him that the divorce had been served via Facebook message.

The court next addressed whether Facebook would be the only means of service to the husband or if another process would be necessary to convince the court that the husband had actually been served. In the few court decisions that had ruled that Facebook or other social media could be allowed as a means for service, there was a requirement that another form of service be utilized as well. The court held that in a situation where a wife has no e-mail address for her husband, where the husband has no known address that could constitute a last known address for service purposes and where the husband has left no forwarding address, Facebook becomes a very compelling way to be certain that the husband would be served with the divorce complaint.

The court finally felt compelled to explain that service via publication could have been used as alternate service here. The problem the court found with this method, where it was completely unknown where the defendant was located, is that it becomes increasingly difficult to ascertain whether publication in one newspaper or another will actually provide a defendant with potential service. The court felt this was especially so in this case, where there appeared to be a very high likelihood that Facebook would provide such service necessary to ensure the defendant would know he was being served with a divorce.

The court added that because the plaintiff wife was statutorily prohibited from actually serving the defendant husband herself, it would be necessary for the wife's attorney to log into the wife's Facebook account and serve the husband via Facebook message by first identifying himself and letting the husband know that he was being served with divorce papers, and actually to provide the husband a copy of what had been filed. He was ordered to perform this three times, to maximize the likelihood that the husband would actually receive service.

Future State of the Law

So where does this leave the state of the law with regard to service of domestic relations legal process via social media? What other possibilities exist in social media and service of legal pleadings in domestic relations matters? Clearly, many of the messaging apps (Facebook Messenger, WhatsApp, Kik, Google Hangouts and the like) will become ripe areas of social media for service issues. More and more people rely on free apps for texting and messaging to avoid additional costs from cellular providers as free messaging becomes the norm. It seems to be the next area of litigation regarding service of process. Twitter has direct messaging. A person in an unknown location, who tweets regularly, could likely be served in a similar fashion to the husband in this New York case. Apps like Pinterest and Swarm also now have messaging features. The possibilities are endless. Technology will play a larger role going forward in the service of process in family matters.

Christian Badali is a partner in the family law group at Weber Gallagher Simpson Stapleton Fires & Newby in Norrristown, PA. This article also appeared in The Connecticut Law Tribune, an ALM sister publication of this newsletter.

As practitioners of matrimonial and family law, we all have seen firsthand, especially within the last eight years, the impact of different forms of social media on divorce and our practices. Facebook posts can greatly impact custody, support and divorce matters, especially in litigation.

We have had cases where the parent who is supposed to be paying support but is not, and is in contempt of a court-ordered support payment, has posted photos of himself or herself out with friends at an expensive restaurant. Or what about the parent who requests the other parent take his or her custody time because they have an important meeting and then posts about a happy-hour excursion on Facebook? Those are becoming more and more common in our practice. In fact, I would be surprised if any family law practitioners have a litigated case these days that does not involve some form of social media. Facebook is the most popular, but others are gaining ground. Twitter, Snapchat, Swarm, Tumblr, Pinterest and Google Plus are all also in the mix.

Social Media and Divorce

Divorce laws vary from state to state with regard to service of the original divorce complaint. Most states require some type of personal service or delivery to the defendant due to the fact that such action has a high degree of importance to both litigants. But this could change in certain cases.

What the Courts Say

A recent ruling by the Supreme Court of New York has provided a whole new outlet for family law litigation centering on social media and the service of process in divorce, custody and support cases. Baidoo v. Blood-Dzraku, decided on March 27, involved a case where the wife, in a short-term marriage, could not find the husband and had no idea where he was currently residing. The parties had married in 2009, but never resided together. The defendant's last known address had been an apartment where he was residing, but which he left in 2011. When the parties last spoke via telephone, according to the opinion, the husband told her that he had no fixed address and no employment. She wanted him to make himself available to be served with a divorce complaint, but he refused. The wife hired investigators to find him, but to no avail. The husband had no forwarding addresses and he was using a prepaid cellphone. The court found that personal delivery of the complaint upon the husband was not possible.

The court also said that alternative service methods would also be futile, since no home or business address of the defendant was known. The wife had made a case for seeking alternative service.

Now that the wife had met the burden of proof that she may serve the husband by alternate service, she needed to next satisfy the court that her proposed method of service would be reasonably calculated to allow the defendant to know that he was being divorced. The court then explained that there are only a small number of cases that allow service via social media. But that is precisely what the wife proposed.

The court explained that the wife's proposal is a sharp departure from all traditional rules of what constitutes service of process as it is usually understood by practitioners. The court then explained that a new way of doing something should not be rejected just for being a departure from the norm. The court said that where technology intersects with the law, it is there that new concepts may well become the norm in the near future. The court added that because legislatures often lag far behind technological advances, it is even more important that the courts intervene and assist practitioners and parties with answers to these legal dilemmas. Legal procedures must keep pace with technological advances.

Can a Spouse Serve a Divorce Complaint Via Social Media?

Ultimately, the court considered and ratified the basic assumption: If a wife serves a husband a divorce complaint via Facebook message, is there a good chance that he will receive it? In order to determine this, the court required proof that the Facebook profile the wife purported to be her husband's actually belonged to him. In this matter, the wife accomplished this by affidavit accompanied by copies of exchanges between the husband and wife on the husband's Facebook page.

Second, the court felt that the wife must prove that the husband actually logged into his Facebook page regularly enough to actually receive the divorce complaint. She proved this by reference to a number of regular exchanges with him on Facebook over a short period of time. She also showed that if all else failed, the wife or her counsel would be able to leave a voice message or text the husband, alerting him that the divorce had been served via Facebook message.

The court next addressed whether Facebook would be the only means of service to the husband or if another process would be necessary to convince the court that the husband had actually been served. In the few court decisions that had ruled that Facebook or other social media could be allowed as a means for service, there was a requirement that another form of service be utilized as well. The court held that in a situation where a wife has no e-mail address for her husband, where the husband has no known address that could constitute a last known address for service purposes and where the husband has left no forwarding address, Facebook becomes a very compelling way to be certain that the husband would be served with the divorce complaint.

The court finally felt compelled to explain that service via publication could have been used as alternate service here. The problem the court found with this method, where it was completely unknown where the defendant was located, is that it becomes increasingly difficult to ascertain whether publication in one newspaper or another will actually provide a defendant with potential service. The court felt this was especially so in this case, where there appeared to be a very high likelihood that Facebook would provide such service necessary to ensure the defendant would know he was being served with a divorce.

The court added that because the plaintiff wife was statutorily prohibited from actually serving the defendant husband herself, it would be necessary for the wife's attorney to log into the wife's Facebook account and serve the husband via Facebook message by first identifying himself and letting the husband know that he was being served with divorce papers, and actually to provide the husband a copy of what had been filed. He was ordered to perform this three times, to maximize the likelihood that the husband would actually receive service.

Future State of the Law

So where does this leave the state of the law with regard to service of domestic relations legal process via social media? What other possibilities exist in social media and service of legal pleadings in domestic relations matters? Clearly, many of the messaging apps (Facebook Messenger, WhatsApp, Kik, Google Hangouts and the like) will become ripe areas of social media for service issues. More and more people rely on free apps for texting and messaging to avoid additional costs from cellular providers as free messaging becomes the norm. It seems to be the next area of litigation regarding service of process. Twitter has direct messaging. A person in an unknown location, who tweets regularly, could likely be served in a similar fashion to the husband in this New York case. Apps like Pinterest and Swarm also now have messaging features. The possibilities are endless. Technology will play a larger role going forward in the service of process in family matters.

Christian Badali is a partner in the family law group at Weber Gallagher Simpson Stapleton Fires & Newby in Norrristown, PA. This article also appeared in The Connecticut Law Tribune, an ALM sister publication of this newsletter.