To start a divorce action, you must file a Summons with Notice or a Summons with a Verified Complaint (“Pleadings”). After filing, your spouse must be served with the Pleadings within 120 days of the filing in one of the following ways: (1) personal service; (2) service on a person of suitable age and discretion at the spouse’s residence or place of business; (3) service on an agent; (4) “nail and mail”; or, if all else fails, (5) service “in such manner as the court, upon motion without notice, directs.” N.Y. CPLR §308.
What happens when you cannot find your spouse in order to provide formal notice to him/her of the divorce action? That exact situation arose in the recent case of B v. B, where the New York Supreme Court (New York County) under the discretion given it by CPLR § 308(5) allowed the Plaintiff to serve her husband via private Facebook message when all other traditional methods had failed. Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 (N.Y. Sup. Ct. March 27, 2015).
In Baidoo, Justice Matthew Cooper permitted Ellanora Baidoo, a twenty-six-year-old nurse, to serve her husband with divorce papers via private Facebook message. Baidoo and Victor Sena Blood-Dzraku were married in 2009 in a civil ceremony, but the marriage fell apart when Blood-Dzraku refused to go through with the subsequent promised Ghanaian wedding ceremony. As a result, the marriage was never consummated and the parties never lived together. After the fallout, Blood-Dzraku kept in touch with Baidoo only via phone and Facebook. He had no fixed address after vacating his apartment in 2011, never listed a forwarding address with the post office and had no place of employment. His prepaid cell phone was not linked to any billing address.
With no means by which to serve Blood-Dzraku personally and with no discoverable place of business or residence at which to effectuate service, Baidoo, through her attorney, filed a motion with the court under N.Y. CPLR § 308(5) to be allowed to serve via a court-directed alternative method. After considering the circumstances, Justice Cooper granted the motion, stating that Baidoo’s attorney may “serve Defendant with the divorce summons using a private message through [Baidoo’s] Facebook” and that the transmitted message must be “repeated by Plaintiff’s attorney to Defendant once a week for three consecutive weeks or until acknowledged.” (Baidoo at 5). After the first message with the Summons was sent via Facebook, the court ordered that Baidoo and her attorney must also “call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.” (Baidoo at 5).
While service via Facebook message is a novel approach, alternative methods of service under CPLR § 308(5) allow courts to create methods of service that take advantage of new technologies. As Justice Cooper noted:
As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email. . . . [W]hile the legislature has yet to make email a statutorily authorized method for the service of process, court are now routinely permitting it as a form of alternate service.
(Baidoo at 1). CPLR § 308(5) is designed for exactly this sort of situation – when conventional methods fail, the court must use all of the possibilities at its disposal to craft a new means by which to serve divorce papers to ensure that formal notice of the lawsuit is received and to protect against such lawsuits being frustrated by evaders. Social media is woven into all facets of modern life and the court recognized that if Blood-Dzraku was going to utilize Facebook as his main means of communication, then there was no reason not to take advantage of Facebook as a means by which to notify him.
In practical terms, this is an option that will be available only in a very limited number of cases. By no means does this ruling suggest that courts will suddenly start to allow Facebook messages as a common means by which to serve notice of divorce actions, at least not yet. It is likely that service via Facebook, or its technological successor, will eventually become as commonplace as service via email. In the meantime, if you’re facing a situation where the person you need to serve has no billing address, work address, or home address, then asking the judge to allow service via Facebook message is a valid option. Evaders beware.
Fredman Baken & Kosan is a Westchester, New York Divorce Law Firm dedicated to providing objective and experienced advice to assist you in making informed decisions, during a time when you may be feeling confused and overwhelmed, so that your family can transition from uncertainty to security. Call (914) 997 9070 today.