http://www.jdsupra.com/legalnews/divorce-papers-served-by-facebook-cold-33514/
How Insane is this? Now you CAN LEGALLY SERVE DIVORCE PAPERS BY USING FACEBOOK???? IN NEW YORK ANYWAY??? Facebook is apparently taking the place of newspapers these days, along with many other things. Can we start to imagine the problems one might encounter with dueling spouses who claim they used Facebook to serve divorce documents when the people don't even get along, Facebook keeps changing rules, and Facebook is controlled in part, by the users. It would seem that one small glitch could entirely take out the "service" in our view, creating even more problems.
Calling social media “the next frontier in the developing law of the service of process over the internet,” a New York judge has allowed service of divorce papers via Facebook private messaging. This is either a cold invasion of one’s social media space or a practical solution to a service problem. Either way, it’s something few recipients will “Like.”
If you want a divorce in California, you start a judicial proceeding by filing a petition and obtaining the issuance of a summons. See Cal Rules of Ct 5.74. The next step is to have the papers—a copy of the petition and summons—served on the other spouse (the respondent) by an adult who’s not a party to the action.
California law sets out four ways to serve divorce papers within California (Cal Rules of Ct 5.68(a)):
- Personal Service. A summons may be served by personal delivery of a copy of the summons and petition to the respondent. CCP §415.10.
- Substituted Service. The respondent may be served by substituted service if the petitioner has, with reasonable diligence, first attempted to effect personal service. CCP §415.20(b). Substituted service is made by
- Leaving a copy of the summons and petition at the person’s dwelling, usual place of abode, usual place of business, or usual mailing address (other than a P.O. box), in the presence of a person at least age 18 who is either a competent member of the household or a person apparently in charge of the office, place of business, or mailing address, and informing the person of the contents; and
- Mailing a copy of the summons and petition (by first-class mail, postage prepaid), addressed to the person to be served at the place where a copy of the summons and petition was left.
- Service by Mail and Acknowledgment of Receipt. A petitionermay effect service by mailing a copy of the summons and petition to the respondent under CCP §415.30 by
- Mailing (by first-class mail, postage prepaid) a copy of the summons and petition, two copies of the Notice and Acknowledgment of Receipt (Judicial Council Form FL-117), and a self-addressed stamped envelope to the respondent; and
- Having the respondent complete and sign one copy of the acknowledgment of receipt and return it to the sender.
- Service by Publication or Posting. A petitioner may effect service by publication when the court is satisfied that the respondent can’t, with reasonable diligence, be served by another method specified in CCP §§415.10–415.50. CCP §415.50. In addition, the court must find either that a cause of action exists against the party to be served or that the party is a necessary or proper party to the action (CCP §415.50(a)(1)), or that the party has or claims an interest in property in California that’s subject to the court’s jurisdiction or that the relief demanded would exclude the party from any interest in such property (CCP §415.50(a)(2)). A court allowing service by publication must order the summons to be published in a named California newspaper most likely to give notice to the party to be served. CCP §415.50(b).
But all of these ways to serve presuppose that you can geographically locate the respondent. But what if the respondent makes it impossible to find him or her? You may be able to look outside the physical world and into the virtual one, i.e., locate the respondent on the Internet through social media platforms.
If it comes to California, it’s likely that service via Facebook or other social media platforms would be a last-ditch effort and would need reasonable safeguards.
The New York judge first asked the petitioner to prove that the Facebook account was her husband’s through their correspondence, and then directed her and her attorney to serve the divorce papers for three consecutive weeks. The court found that, under the circumstance presented, service by Facebook “is the form of service that most comports with the constitutional standards of due process.”
What do you think—should California courts accept service via social media, and if it does, what safeguards would you want?
