Legal: Can Social Networking Sites Be Used to Serve Divorce Paperwork?

First came foreclosure notices. Are divorce papers next? That’s the question being asked about social networking sites after the Australian version of the Supreme Court approved using to serve legal documents to a couple whose home is in foreclosure.

The Australian courts agree to allowed attorney Mark McCormack to serve foreclosure documents to Gordon Poyser and Carmel Corbo on facebook’s private e-mail after direct contact wasn’t possible. A week before Christmas, the couple is facing the loss of the home they’ve lived in for seven years.

McCormack, who maintains a page on facebook, got the idea of serving the foreclosure documents to the couple after finding Corbo’s personal page on the site. The court agreed to allow McCormack’s client, MKM Capital, to serve the legal paperwork via facebook, but asked that it be done through the network’s private e-mail so that it could be kept from the public.

McCormack told the Associated Press that the publicity about his efforts may have hurt him, as the couple’s Facebook public profiles had been closed or made private after he’d gotten the court’s approval. Still, McCormack said the attempt would allow MKM to say it had taken reasonable steps had been taken to serve the couple, who are two of the 140 million users of the popular web site.

Only one other case exists in Australian law in which legal documents were served to a facebook user. The question is whether the practice will take hold in the United States, particularly in divorce cases. Several experts who spoke to suggested it would depend on the state’s divorce laws. Others disliked the public nature of such a move. The idea of serving divorce papers on Facebook is scary to me, said Long Beach, Calif., psychotherapist Tina Tessina, Ph.D., author of the book, “Money, Sex and Kids: Stop Fighting about Three Things that Can Ruin your Marriage.”

“I can see it as a last resort attempt, but it’s so very public! Perhaps some kind of interim method, like a note that says ‘You have a legal notification. If you do not pick it up, the court will recognize that you have been notified,’ might be more appropriate. It wouldn’t disclose as much, but it would be as effective.”

Beverly Hills, Calif., family law attorney Warren R. Shiell called it an interesting idea that could actually work in his state. “If you are unable to serve personally, in California as in most jurisdictions, you can apply to the Court to effect substitute service,” he said. “There is case law that you may service on a private post office box if you can show that the party regularly receives and picks up mail there and you could not serve by a regular method and you used due diligence.”

Although there is no California case law on this issue, Shiell said, “You could argue that the same principles should apply to facebook or some other networking site, which is for all intents and purposes the digital version of a post office box. You might have difficulty establishing that a site belongs to the person who you claim it is.”

The difference between a post office box and a social networking site is that, “In the case of a post office box, you usually have to provide proof of ID whereas there is no such requirement for networking sites. On the other hand with most networking sites, people post their photograph and provide other intimate details which you could use to authenticate the identity of the site’s user.”

In New York, however, family law attorney Daniel Clement doubts the courts would allow using social networking sites to serve divorce paperwork any time in the near future. “We cannot even make service by fax or e-mail,” he said. “In divorce, in particular, service must be personal service. In many cases, attorneys agree to accept service on behalf of the clients. But, if service cannot be made personally — i.e., handed to the defendant — you need a court order to make alternate service.”