January 3, 2017|
In just a few short years, social media has radically transformed the way we communicate with one another, so a New York judge may have sparked a national trend when he allowed a divorce petitioner to serve marriage dissolution papers on her estranged spouse via Facebook.
26-year-old Ellanora Baidoo married Victor Sena Blood-Dzraku in a 2009 civil ceremony, but the relationship almost immediately fell apart, supposedly because Mr. Blood-Dzraku refused to participate in a traditional Ghanaian wedding, despite his previous agreement to the contrary. In fact, according to Ms. Baidoo’s attorney, the two neither consummated the marriage nor cohabitated after exchanging vows. When she subsequently filed for divorce, Ms. Baidoo could find no current address or place of employment for her estranged husband, but over the past several months, the two had occasionally kept in touch through Facebook. So, Manhattan Judge Matthew Cooper allowed her to send Mr. Blood-Dzraku a private message once a week for three consecutive weeks, or until he acknowledged receipt of the message.
Mr. Blood-Dzraku apparently never responded and the court apparently granted a default divorce.
Service of Process in Divorce Cases
In most civil proceedings, the answer (primary responsive pleading) is the responding party’s first chance to “beat” the case. For example, in car crash and other negligence cases, the insurance company uses the answer to tell its side of the story and present any affirmative defenses.
California is a pure no-fault jurisdiction, so there is really no way to stop divorce cases once they are on file, because most judges readily accept the testimony of either spouse that the marriage has broken down. Even if the respondent has a valid claim that the marriage could be salvaged, “it takes two to tango,” as the old saying goes. If one spouse believes that the relationship has hopelessly broken down, further attempts to reconcile, regardless of the respondent’s attitude, would probably be pointless.
Instead, personal service gives the respondent a chance to be heard on ancillary issues, like property division and child custody. Furthermore, personal service usually prevents respondents from re-opening closed divorce cases months or years later, a process that it very expensive, time-consuming, and frustrating.
Personal Service Methods
The rules are a little broader in California than in some other jurisdictions, because anyone who is at least 18 and is a non-party can serve papers; in some other places, only a law enforcement officer, like a sheriff or constable, or a licensed private process server can carry out this function.
Constable service is normally the most seamless method, because petitioners can normally arrange for constable service at the same time they file their petitions. However, as one might expect, serving divorce papers is rather low on the priority list for most law enforcement agencies. In fact, in constable-service cases, it is not unusual for the temporary hearing to be rescheduled once or even twice because the respondent has not been served. Moreover, petitioners do not have as much control over constable service. For example, many petitioners do not want to serve respondents at work to spare them some embarrassment, but constables usually serve the papers in any legal way that conforms to their schedule for the day.
To expedite the process and retain control over the service method, many attorneys partner with private process servers. In addition to efficiently serving the respondent, process servers normally take care of all the paperwork, so the extra few dollars is money well spent.
Process servers do not have an infinite amount of time to complete personal service, because the court-issued papers usually have expiration dates.
Even if the process server has valid contact information, personal service is not always possible. Sometimes the respondent moves around a lot during the day, and sometimes the respondent simply refuses to answer the door. In other cases, as in the above story, the petitioner and respondent have lost touch and the petitioner has no valid personal contact information.
If the server makes three or more unsuccessful attempts at an address known to be correct, the judge normally allows the process server to leave the papers with anyone who answers the door or responds to the page.
If the petitioner does not have a valid address, the process is a little more complicated. First, the petitioner must try to locate the respondent by talking with friends or relatives, checking for forwarding addresses, and so on. It’s not necessary to hire a private investigator, in most cases. Next, the judge normally orders the petitioner to either publish the summons in a local newspaper or post it near the courthouse door.
One day soon, electronic service will probably replace the current substitute service methods. Although it is almost impossible to verify whether or not the respondent actually viewed the message, service via Twitter or Facebook is at least as effective, if not more so, than placing an advertisement in a newspaper that no one will probably read.
Proper and efficient service of process expedites the overall divorce process. For a free consultation with an experienced family law attorney in Los Angeles, contact Fernandez & Karney. Our law firm includes Board Certified family law experts.