The Facebook Divorce

February 21, 2017

At least one judge in New York has ruled that a person seeking a divorce may serve the spouse with divorce papers via Facebook.  Facebook breakups have long been the source of gossip and relationship lore.  But divorce papers? Is that taking it too far?

Maybe not, maybe Facebook divorce just makes sense.

One advantage is that it is free.  No investigator is needed.  With notice through Facebook, no one needs to scour apartment buildings or grocery stores to find the service target.  No newspaper advertisements are needed.  The law surrounding service of papers has required, in the absence of person to person service, an advertisement be taken out in a newspaper that is reasonably calculated to serve the target’s residential area.  Newspaper ads costs money, especially in areas where national or international newspapers serve that area, like Brooklyn or Manhattan.  The ad could cost thousands and ultimately not notify the target of the service if it goes unread.  A Facebook message, on the other hand, costs nothing.
Another advantage of Facebook notice is that it avoids the need for a current address.  In the event a spouse flees the area, or country, in a separation, it may be difficult to find a current address for that person.  Facebook avoids that problem by reaching them online.
Electronic notice methods, like person to person notice, can be arranged to provide a “read receipt” or a “received” notice once the correspondence is opened by the recipient.
On a practical note, Facebook is for some the first thing they look at everyday.  Over 51% of the U.S. population uses Facebook, spending an average of 40 minutes per day on the site.  For active users, perhaps the most reliable method of notification is in fact, through Facebook.
The first challenge to Facebook notice is that the intended recipient may not actively use the site.  Perhaps the user only checks the site monthly.  Or perhaps the recipient formed a Facebook profile but abandoned it years ago.
There are also online break up tools that hinder Facebook notice.  Facebook provides a few of these tools itself, by offering to purge pictures and posts that involve the ex in question.  Other applications such as KillSwitch and Ex Lover Blocker help lovers get over break ups.  These tools, among other things, can block correspondence from an ex.  Facebook notice in such a situation would be ineffectual.
Online deceptions will also plague Facebook notice.  There is no 100% accurate and surefire way to confirm that the person that sits at the machine at the other end of the electronic correspondence is the intended recipient.
As a result of the above challenges, some judges have rejected Facebook notice, preferring traditional person to person, certified mail and publication notice.
Courts have developed a legal test to accommodate the advantages of Facebook notice while at the same time mitigating its challenges.  The courts that have permitted its use have done so if the Facebook notice was “reasonably calculated to give effective notice and other alternatives were impractical.”
Notice is not “reasonably calculated” to give effective notice if the intended recipient infrequently visits Facebook or altogether abandoned its use.  Additionally, at least one court required that for Facebook notice to be used, the party offering its use must provide affirmative evidence that the would-be recipient regularly visits the site.  Evidence of daily posts or message traffic could satisfy this burden.  All courts have at least required a showing that the recipient has not abandoned the site altogether.
The “other alternatives” mentioned in the legal rule suggested by the courts include person to person, certified mail, email, and newspaper publication notice.  The courts that have contemplated Facebook notice largely agree that the traditional notice methods remain superior to Facebook notice in reliability.
Newspaper publication notice is not likely to remain a favored method.  Print newspaper sales continue to decline, and electronic news and communications mediums stand in replacement.  The decline of newspaper sales means newspaper notice is less and less effective.  In time, courts are likely to recognize social media notice as superior to  newspaper publication notice.
Person to person notice will likely remain the preferred method.  It offers the strongest confirmation that he message reached the intended recipient.  However, perhaps with time, social media notice may advance past certified mail or gain parity with it.