A Time Magazine article published in 2015 made a bold claim. Titled “You Can Now Serve Divorce Papers on Facebook,” the article discusses a New York divorce case where a wife used Facebook to serve divorce papers on her soon-to-be ex-husband. Anyone who catches a glimpse of this title may be intrigued by what the title seems to promise. Yes, the Manhattan Supreme Court held that the wife could use the social media platform to serve divorce papers on her husband. But does this mean that social media platforms can be a petitioner’s choice for service of process of a divorce summons? A review of the case and California law helps to provide our best assessment.
Serving Divorce Papers in California
A divorce begins when one spouse files a summons and petition for a divorce with the court. The spouse who files the petition is known as the “petitioner.” After the paperwork is filed with the court, the petitioner is then required to serve petition and summons on the other spouse. The spouse who is being served is known as the “respondent.” California law provides four different ways to serve divorce papers on a spouse.
- Personal Service. Personal service is the method that is preferred by the state. Personal service is completed when the divorce petition and summons are personally handed to the respondent. California has more lenient laws than other states about who can personally serve a summons. Some states require the service to be completed by a law enforcement officer or private process server. In California, anyone who is a non-party and at least 18 years old can serve divorce papers on a respondent. Many times, however, a petitioner will choose to use a private server.
- Substituted Service. If a petitioner cannot successfully serve the respondent personally, they may use a substituted service. Substituted service is made by leaving a copy of the summons and petition at the respondent’s usual place of business during normal business hours and subsequently mailing a copy of the summons and petition to the same address. Alternatively, substituted service can be completed by leaving a copy of the summons and petition with a non-party who is at least 18 and present at the respondent’s dwelling, usual place of abode, usual place of business, or usual mailing address (other than a Post Office box). A copy of the documents must then be mailed to that address.
- Service by Mail and Acknowledgment. Service may also be made by mailing a copy of the divorce papers along with two copies of Form FL-117 (Notice and Acknowledgment of Receipt). The respondent then completes and signs one copy of the Form. Service may be made by email if the respondent agrees.
- Service by Publication or Posting. If the previous methods of service are unsuccessful, a court may allow a petitioner to publish the summons in a newspaper published in the state of California that “is most likely to give notice to the party to be served.” A copy of the divorce papers must also be mailed to the respondent’s most likely address.
Using Social Media to Serve Divorce Papers
In the case referenced by Time Magazine, the court did allow the petitioner to use the popular social media platform Facebook to serve her husband with divorce papers. However, the petitioner “had spent years trying to serve the husband” without success using traditional service methods in New York. Her husband disappeared without leaving a forwarding address, had no usual or constant place of business, and no record with the New York Division of Motor Vehicles. The Manhattan Supreme Court only permitted the petitioner to use social media because she had exhausted all other possible avenues. Using Facebook, the petitioner was to send her husband a private message on Facebook (to an account the court had verified was his) “once a week for three consecutive weeks or until acknowledged.” The private messages were to be accompanied by personal calls to the respondent.
Service-by-Facebook was only permitted as a last-ditch effort to serve the respondent. It is is unlikely that service-by-social media will be a commonly permitted method for serving divorce papers (or other legal documents) on a spouse. New York remains the only state where social media was deemed to be an appropriate and reasonable method for service. Given that California only allows service by publication after other methods have been attempted with “reasonable diligence,” it will be unlikely that social media would be an acceptable or permissible method.
It is interesting, however, that California permits Service by Mail and Acknowledgment of Receipt via email if the respondent agrees. It could be possible, then, to foresee situations where service via social media messenger platforms could be utilized if the respondent also agrees to receive the documents in that way. If social media were to be involved in service of process at all, this could perhaps be a possibility. However, it does require the consent and cooperation of both parties, and is often only proper when personal service has failed or is too difficult.
As technology improves and we change our preferences for communication the laws will have to adjust. It is unlikely, however, that we will see service-by-social media as a common method any time in the near future. Authenticating accounts can become problematic, and personal service will probably always be the court’s preferred method. The New York ruling may, however, offer a glimpse into the future.