Justice Mathew Cooper's recent decision to allow service of a New York divorce summons by Facebook is a significant step toward utilizing technology to bring the legal system into the 21st century. Previously, New York law required a summons for divorce to be served on a person directly, which, in some cases, may prove nearly impossible if a person is purposely evading service or that individual's whereabouts are not easily ascertainable.
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The New York civil-practice rules do allow a judge to order alternate forms of service. In the past, this has been by publication or simply by nailing or mailing the summons to a person's last known address. I think allowing service by Facebook is ingenious and would render moot many of the system's inefficiencies.
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However, before a judge might consider service by this alternate means, a party would need to convince the judge through a written application, known as an order to show cause, that the person regularly uses his or her Facebook account and utilizes it as a means of communication. This could be accomplished if the person requesting alternative service is a friend of his or her spouse on Facebook. In that scenario, he or she could simply print out the last 30 to 60 days of the other's posts to prove to the court that Facebook is a regular form of communication.
Countless people in New York are unable to get divorced or obtain orders of custody of their children because they do not know the whereabouts of their estranged partners. Often, the estrangement is purposeful, as the other party does not wish to get divorced or he or she wants to make the other's life more difficult. Prior to Justice Cooper's decision, a party's only remedy was to apply to serve the other by publication. Service by publication is not only extremely expensive, but it is not as effective as posting the notice on a social media site.
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Contesting service by Facebook would prove difficult for the objecting party. If the summons were served by a private message between an account holder and the party being served, it not only would be obvious that the documents were delivered, but I am quite sure a representative of Facebook would be able to certify that a particular private message between two accounts was delivered. In this scenario, I imagine the person opposing the service by Facebook would have to prove that the account that was served was not his or that he gave up control of his own account to a third party. These defenses do not seem viable in my opinion.
Service by Facebook is just a start, as there are other forms of social media that might be utilized, such as LinkedIn, Twitter, and Instagram, to name a few. This decision opens the door for creativity for lawyers and litigants alike and brings the court system closer to adapting to the times and current technology in the 21st century.
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Commentary by Brian Perskin, founder of Brian D. Perskin & Associates P.C. matrimonial law practice located in Brooklyn Heights and Manhattan. Follow him on Twitter @BrianPerskin.