Understanding ‘Absentee Spouse’ Divorces
The online divorce movement took a step backwards in December 2016 when a New York judge threw out a case involving substitute service via social media.
Manal Qaza filed for divorce from her husband shortly after they married in 2011, apparently because Abdulla Ashalabi reneged on a promise to follow up their civil ceremony with a traditional Ghanaian wedding.
A lower court judge had allowed her to send notice of divorce to her estranged husband via a Facebook post as opposed to publication in a Saudi newspaper, because the man had apparently been deported.
But an appeals court judge wasn’t convinced. He noted that the man hadn’t posted anything on the site for about a year, Ms. Qaza failed to authenticate his account, and that she had not complied with court orders regarding the substance of the social media messages. The judge also questioned Ms. Qaza’s earlier assertion that she kept in touch with Mr. Ashalabi via Facebook.
In recent years, two New York judges have allowed family law litigants to send notices via Facebook, at least in certain cases.
Direct Notice in Divorce Cases
For various reasons, some perfectly valid and others not so much, many couples are separated for months or even years before one spouse formally files divorce papers. By that time, especially if the couple had no children and/or was married only for a few years, the other spouse may be nowhere to be found. According to Hossein Berenji, a Los Angeles divorce attorney, “that’s a problem, because basic due process requires respondents to receive fair notice that ensures them an opportunity to be heard on important matters like child custody and property division. After the person receives initial notice, the following rules are much less rigid.
Personal service is always the best way to ensure that the proper person receives notice; if the other side has an attorney, service via attorney of record may be an option as well. In California, any non-party over 18 can serve notice papers, since the law does not require that a constable or licensed private process server perform such a function.
Service of notice by certified mail is usually also acceptable. The obvious problem is that service is only complete once the respondent claims the letter, so if the correspondence is returned undelivered, there is no service of process. There may be other irregularities that defeat legal service as well; for example, not all postal delivery people require the recipients to sign receipts.
Eventually, the California Judicial Council, and subsequently state lawmakers, will probably amend the rules of procedure to allow service via social media or other electronic methods, but until that day comes, strict adherence to the existing rules is the best way to ensure that a divorce decree is not invalidated on technical grounds.
Indirect Notice in Divorce Cases
If the other spouses cannot be personally served, petitioners must complete due diligence affidavits, certifying that they have made legally sufficient efforts to locate their absentee spouses. Although it’s not necessary to hire a private investigator, the court will not be satisfied with a cursory check of the person’s last known addresses.
Sometimes, petitioners have good addresses but cannot complete personal service, usually because the respondent avoids service. In these cases, “nail and mail” service may be an option. If the judge so allows, petitioners may post notices near the door or in another location where they are likely to be seen and mail copies via certified mail to that address. Unlike the process discussed above, service is complete ten days after the notice is mailed, whether or not the addressee retrieves the correspondence.
In true absentee spouse cases, service by publication is usually the only way to go. Once the judge approves the due diligence affidavit, notice must be published in a designated newspaper for a certain amount of time. The actual rules usually vary by jurisdiction, but if no one responds in about a month, the petitioner may be able to proceed and obtain a judgment by default. If you need more assistance, speak with a family law attorney at Berenji & Associates.
