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Divorce via Facebook: NY judge opens door for legal papers to be served through social media

April 7, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Attorney Brian Perskin says social media service brings the courts into the 21st century. (Photo via newyorkdivorceattorney.com)

Social media platforms — including Facebook, Twitter and LinkedIn — have been a ubiquitous form of communication and networking for the past decade. In a Mar. 27 decision, a Manhattan judge took electronic communication further, allowing a woman to serve her estranged husband divorce papers via a Facebook private message.

In the case Baidoo v. Blood-Dzraku, New York Supreme Court Justice Matthew Cooper ordered divorce papers to be served on social media once a week for three weeks, reasoning that any other form of traditional service would be “an exercise in futility.”

The plaintiff, Ellanora Arthur Baidoo, and defendant, Victor Sena Blood-Dzraku, never lived together despite getting married in 2009. Baidoo desired to initiate a divorce proceeding against her estranged husband, but he refused to make himself available to be served the divorce papers.  According to the court records, the defendant does not have a fixed address and is currently unemployed. The two do communicate via telephone and social media.

In general, New York requires service of legal papers to be delivered personally or by alternative or substitute methods. In typical divorce proceedings, the estranged spouse is served at his or her last known address or actual place of business.

As Cooper explained in his final ruling, substitute service can be utilized when personal service is unavailable. For example, legal papers can be left with another person at the defendant’s residence or place of business in addition to being affixed and mailed to the same. These alternatives methods, however, require knowledge of a defendant’s last known address.

In Baidoo’s case, the defendant vacated his last known address in 2011, and the post office does not have a forwarding address for him. Baidoo even went so far as to hire investigative firms to locate her estranged husband; all efforts have been unsuccessful.  Baidoo did have one sure way of reaching her soon-to-be ex: on Facebook.

Courts have previously and do regularly allow novel or unorthodox means of service, including email, but such service has not been codified in law.

“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,” Cooper noted. And with social media sites appearing as the “next frontier in the developing law of the service of process over the Internet,” Facebook and Twitter may follow suit.

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Some Brooklyn-based matrimonial attorneys view social media as appropriate and effective methods of service.

“It is better then nail and mail, especially if you know the other party is active on Facebook,” attorney Brian Perskin told the Eagle. “It is not unusual that one spouse would hide, and service by social media could help people who do not have access to private investigators,  in order to determine or locate the defendant’s address.”

When personal service or substitute service is unavailable, parties can request that notice of a divorce action be placed in a news publication (also known as service by publication). Specifically, New York law allows for publication service where “service cannot be made by any other prescribed method with due diligence.”  

Judge Cooper rejected publication service in Baidoo’s case, citing the impracticality and ineffectiveness, in his opinion, of newspaper service. Newspaper service or service by publication has been an acceptable form of notice in New York since colonial times, Cooper explained. But the process and cost can be prohibitive to some plaintiffs.

“You can apply for publication service, but it is a lot of work and is very costly,” Perskin advised.  

In an application for a judicial order for service by newspaper, the plaintiff would often have to show that he or she has checked the post office, military records and voting records of their estranged partner to prove an inability to locate the defendant. Even then, Cooper noted, notice of a divorce action is not guaranteed. “[The] chances of [a divorce action] being seen by defendant, buried in an obscure section of the paper and printed in small type, are infinitesimal,” Cooper wrote.

Courts have been split on the issue of service through social media and where courts have allowed such service, it is generally required that social media be used to supplement more traditional means of service. But while the concept of social media service is new, it should not “be rejected simply because it is novel or non-traditional,” said Cooper.

The ultimate question is whether or not the defendant will receive notice the divorce action via his Facebook account. There is a chance that a social media account is a false profile or contains incomplete information. But where there is a reasonable certainty that the account in question does belong to the defendant, social media service can be effective. “You can tell how active someone is by how much they post or ‘like’ items on social media,” Perskin said.  

In Baidoo’s case, she included copies of exchanges between her and her estranged husband through his Facebook page and identified him as the subject of photographs on that page. While not “absolute proof,” it was enough to persuade Cooper.

Not all Brooklyn attorneys agreed with Cooper’s ruling. Attorney Robert Ugelow noted that he did not think social media service was an “appropriate” means of notice.

“You have to use personal service,” he told the Eagle in a phone interview.

“I think it’s moving the court into the 21st century,” Perskin countered. Cooper referred to it as an “age of technological advancement.”

In order to complete service by Facebook, Baidoo’s attorney will have to log onto his client Baidoo’s Facebook account to directly message Blood-Dzraku and include either the web address of the divorce summons or attach an image of the summons to the private Facebook message. This must be repeated once a week for three consecutive weeks or until the notice is acknowledged by Baidoo’s husband. In addition, the plaintiff and her attorney are required to call and text to advise him that the divorce was sent via Facebook.

 

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