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Recently, a story out of New York has been circulating across the internet involving a Manhattan Supreme Court Judge that permitted a woman to serve her husband with divorce papers through a private Facebook message.  According to the story, the husband was a somewhat transient individual who lacked a fixed place of residence and was not employed.  The woman and her attorney tried everything they could to get her husband served, but even a private detective was not able to locate the whereabouts of the husband.  When the woman told the Judge that her communication with her husband was mostly through Facebook, the Judge decided that service through Facebook message was the new frontier of ensuring due process in the twenty-first century.

According to the story, the Judge’s order granted the woman permission to serve defendant with the divorce summons using a private message through Facebook.  The order also stated that the woman’s attorney shall repeat the message once a week for three consecutive weeks or until the husband acknowledged his awareness of the message and the lawsuit against him.

This story, while amusing, brings up a question that family law attorneys hear all the time:  What happens when I no longer know where my spouse is living?  This question turns to the heart of our concept of due process.  This often-cited constitutional right has evolved over the centuries and has become something of a catch-phrase for television shows about crime and courtrooms.

According to the Cornell University Legal Information Institute, the content of due process is a historical product tracing back to the Magna Carta.  It embodies a promise that “no free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”  While there is a much longer article to be written on the subject of substantive due process, the due process highlighted by our story today is procedural.

A divorce is a lawsuit, and like any other lawsuit, it requires two parties:  a plaintiff and a respondent.  Due process requires that the spouse initiating the lawsuit serve the non-initiating spouse with a citation notifying them of the lawsuit pending against them.  This service can be done through the use of a private process server or the constable of the precinct in which the spouse to be served resides.

While it can often be a hassle locating and serving an estranged spouse—especially when they are aware of your attempts to serve and actively evade such service—this hassle is a necessary component of our judicial system and serves to protect our long-standing belief that no person shall be deprived of life, liberty, or property, without due process of law.

In conclusion, there are many ways in which a party can locate and serve divorce papers on their unwilling spouse.  The use of a private investigator can be helpful in tracking down those especially slippery spouses.  While Texas courts may be hesitant to adopt the “service via Facebook” approach for the time being, family law attorneys and potential litigants should be mindful of the effects of social media and electronic communication on our justice system in the twenty-first century.