Help! I Can’t Contact My Spouse To Serve Divorce Documents! Can I Use Facebook As A Service of Process Instead?
Are you filing for divorce? How exactly do you let your spouse know? The answer is by service of process! Service of process is when you file official court documents and notify your spouse with them. Service of Process arises from the United States Constitution. Specifically the Due Process language in the Constitution doesn’t allow, “personal jurisdiction over a defendant unless the defendant has proper notice of the court’s proceedings.” This essentially means that the defendant will have to be properly served with the court documents.
These court documents include the Complaint for Divorce, Court Summons and associated pleadings (Financial Affidavit, Parenting Proceeding Affidavit, Family Questionnaire, complaint for Divorce and Title IV-D Application for Child Support Services). Nevertheless, there are specific court rules around this crucial step, and they can vary on where you file for divorce. However, the rules that govern service of process can vary by jurisdiction meaning state or county rules.
The Local Montgomery County Domestic Relation’s Court rules are supplemented by Ohio Civil Rules of Procedure, allowing for multiple methods of service which include:
- Personal Service: This type of service takes place by physically handing the defendant the service documents. Once the documents are served, the person serving process has to endorse that it was actually served and return it to the clerk.
- Residence Service: This process includes leaving copy of the documents at the usual place of residence of the person to be served. It must be delivered to someone at the residence who is of suitable age and discretion residing therein. Again, the process server will endorse the process and return it to the clerk.
- Personal Service of Process: A Process Server is identified to personally go to the residence or place of employment of the Defendant and to personally deliver the divorce packet (containing all the pleadings and Summons of the Court) to the Defendant. Once the documents are served, the person serving process has to endorse that it was actually served and return it to the clerk.
- Service by Certified or Express mail: This must be evidenced by a return receipt signed by any person. Instructions must be included to the delivery employee showing the person it must be delivered to, the date of delivery, and the address where the documents are to be delivered.
- Service by Commercial Carrier: Montgomery County allows for commercial carrier service such as FedEx. A signed receipt is required.
What Do I Do If I Don’t Know Where My Spouse Is?
What should you do if your spouse is MIA and you are unable to find the whereabouts of your spouse in order to serve them personally or by certified mail? Then service of publication might be an option!
Service by Publication is exactly how it sounds – a step that resorts to public announcements, typically in newspapers of general circulation, when the other methods of service of process are unattainable. An affidavit must first be filed with the court stating that because the residence of the spouse is unknown and the efforts made to try to find the spouse’s residence or whereabouts with “reasonable diligence” have been unsuccessful. Once the affidavit is filed, the notice will be published in the newspaper. According to the Montgomery County Court Rules, the notice must be published at least once a week for 6 successive weeks. For notice by publication for Montgomery County, it costs $660, which can get costly.
Who can actually “serve” the documents?
Next, you must find someone to deliver these documents to your spouse. The Montgomery County court rules allows for:
- One-time Appointment: A party can get personal service to be made by a special process server pursuant to Ohio Civ. R. 4.1. You would have to file with the Clerk an entry of appointment providing:
- The name of the person to be appointed as process server;
- That person is 18 years of age or older; and
- The person to be appointed is not a party in the action or counsel for the action
Not Your Average Notice
With the rise of social media, other forms of service of process have become available (in some states). For example, in 2016, a court in New Jersey held that service of process was permitted through a Facebook post because all the Constitutional Requirements of Service of Process were met.
Additionally, in New York a plaintiff showed that it was impractical/ impossible to serve the defendant and the Court held that under the circumstances service by Facebook did comport with due process standards. At present, there are no specific rules in place within Montgomery County, Ohio regarding service of process through social media. Nor are there any cases in Ohio that allows for it as of yet.
Service of process is a highly technical and complicated area of the law. Remember, if all these technical requirements are not satisfied, then the Court will not have legal jurisdiction to proceed with the divorce action. Properly navigating this process is best handled by an experienced divorce lawyer.
PUBLISHER’S NOTE:
Special thanks to law extern Anna DeFilippo for writing this! Great job! Anna recently started her externship with Holzfaster, Cecil, McKnight & Mues. Anna will be graduating from the University of Dayton School of Law in January of 2025.
If you are considering a divorce, the experienced divorce lawyers at Holzfaster, Cecil, McKnight & Mues located in Dayton, Ohio can assist you. Please call us at 937 293-2141 to schedule a conference either in person, by phone or Zoom.
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© 2024, Ohio Family Law Blog. All rights reserved.
Attorney Robert “Chip” Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm’s website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.
