One of the most salient criticisms of the institution we call “the law” is that it is almost always behind the curve of social change.
This can be frustrating for people in a variety of ways, from citizens waiting for the law to catch up with how they’re living to people who’ve suffered some injury that requires a specific legal remedy only to find that courts have not yet identified the injury or the remedy.
The law rarely leads. It almost always follows.
Over the last few years, the courts have gradually been making their way into the 21st century and are finally starting to grapple with a longstanding issue that regular people in civil actions like divorce routinely face: how best to serve notice on their absent spouse that a divorce action has been filed.
Serving notice to the other party is a requirement in a lawsuit.
You’re not allowed to simply sue someone in private, without their knowledge or ability to challenge the accusations against them.
This basic standard protects everyone’s rights, and keeps everyone safe from capricious acts by rivals or the judiciary.
Process service can be complicated though, and some workarounds have been developed over the decades to help ensure that a person can legally end a marriage even if their spouse can’t be located.
New York allows a process known as publication divorce, where a spouse who can’t be found can be served by publishing a notice in the local paper of their last known whereabouts.
The notice has to be published several times on a given schedule, and afterwards, the missing spouse has a window in which they can respond to the suit. If they don’t respond, the divorce can be granted.
The theory behind publication divorce is that the missing spouse or friends of the missing spouse may see the notice in the paper and then take appropriate actions.
Judges demand a thorough search of public records, military records, attempts to track down family and friends, questions at the last known workplace, and other fully documented efforts to find the person before they’ll allow you to use the method.
A generation ago, this system made sense, but in the era of Google and Facebook and Twitter, searching for a missing spouse can result in locating their cyberspace personas, without physically locating them.
A number of legal cases in recent years have pushed courts to consider whether service via email or social media is adequate proof that the other party has been notified.
In a 2011 case in Minnesota, a woman named Jessica Mpafe wanted to divorce her estranged husband, whom she hadn’t seen in many years and who she believed had moved back to his native Ivory Coast.
She asked to be allowed to serve notice on him through the Post Office’s general delivery system, where it will hold all mail for a person until they call for it.
The judge felt that this was unlikely to succeed and considered the system outdated. He also declined to authorize her to use the publication divorce option.
Instead, he ordered her to serve notice on her husband through social media, writing, “The traditional way to get service by publication is antiquated and is prohibitively expensive. Service is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.”
In 2013, the US Federal Trade Commission got permission from a judge to use service via email and Facebook to provide additional documentation to defendants in India, which pushed the boundary of an international convention that both the United States and India are party to.
Lawyers specializing in international law continue to debate the merits of that ruling, and only time will tell if use of online service will be allowed in that circumstance moving forward.
New York divorce and family courts have also begun to grapple with the issue of service via Facebook, approaching the matter on a case-by-case basis.
In 2014, a Staten Island resident named Noel Biscocho was eager to stop paying child support when his youngest son turned 21, and went to court to ask a judge for new orders ending his obligation.
He attempted to serve notice on his ex-wife at her home, only to find that she had moved away without providing anyone with a forwarding address.
He called his children repeatedly, but none responded to the messages he left them.
He did locate his ex-wife’s Facebook profile, which was active at the time.
The magistrate in charge, Gregory Gliedman, gave Biscocho permission to send her a message on Facebook notifying her of the action, and also mail physical copies of the relevant documents to her last known address.
Noting that the case was creating a fresh precedent in New York law, Gliedman wrote, “This court is not aware of any published decision wherein a New York state court has authorized service of process by means of social media. The method detailed here… provides the best chance of the Respondent getting actual notice of these proceedings.”
Biscocho’s case worked out because he had made a diligent effort to notify his ex-wife through a variety of means, and could show that her Facebook account was active at the time.
It doesn’t always go so well, though.
In Brooklyn, Justice Jeffrey Sunshine heard a case brought by a woman named Manal H. Qaza, who wanted to divorce her husband, Abdulla Ashalabi, who had abandoned her three months after they married in 2011, leaving her pregnant and struggling.
He had been deported to Riyadh, Saudi Arabia, and Qaza didn’t have the $3,000 it would cost to publish a notice in the newspaper there.
She had located a Facebook page apparently belonging to Ashalabi, and told the judge that she had communicated with her husband through the site, though she didn’t provide copies of their messages.
When Justice Sunshine examined the profile, he found that the most recent activity on the page was more than two years old, and that he was unable to verify that the page actually belonged to Ashalabi.
He ultimately denied the request.
The law moves slowly, as it should, but eventually, it finds a way to apply the most useful parts of what’s happening today to the smooth operation of the court system, benefiting everyone.
When your marriage in Brooklyn is over, work with attorneys who know the current state of the law, and aren’t afraid to ask a judge for what you need, even if it’s never been done before.
Call the attorneys at Zelenitz, Shapiro & D’Agostino today at 718-725-9601 for a free consultation with an experienced Brooklyn divorce lawyer.