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DivorceService By Publication Is a Relic of the Past

November 19, 2007

Adam Liptak, in his New York Times Sidebar column correctly questions the efficacy of requiring service by publication when a defendant in a legal action cannot be located. It is  universally accepted that no one really reads the legal notices published in newspapers.

In a New York divorce action, the defendant must be personally served with the summons. The only time this requirement really becomes a problem is when the whereabouts of the defendant are unknown, e.g., a situation where the parties have been separated for years.

In a case where a defendant cannot be located, the plaintiff may seek an order permitting service by publication after unsuccessfully undertaking a search to locate the defendant. The idea is to give the defendant actual notice of the impending divorce. The only problem – no one really believes that the defendant will actually read the legal notice.

I have a problem with this type of service- it very expensive and it really does not give the defendant notice of the lawsuit.

The publication requirement always struck me as a pointless waste of money,” said Deborah L. Rhode, a law professor at Stanford who in divorce cases has represented poor women forced to buy ads to notify their missing husbands that they had been sued.“It was particularly ludicrous for our clients, who were below the poverty threshold and had partners who would never be looking at the designated publication,” Professor Rhode said. “It was a form of what we used to refer to as ‘sewer service.’ ” (The term refers to the fraudulent practice of claiming to have served legal papers on someone while actually tossing them in the sewer or trash.)

Ironically, Liptak, a newspaper columnist, acknowledges that the requirement of publication in a newspaper is an anachronism and that service by posting on the internet would be more effective. I agree.

First, there is a greater likelihood that the defendant will get notice of the action on the internet than in a print ad.  Even the most widely read newspaper has a limited geographic reach. The internet is world wide. A person could possibly receive notice of the New York legal action anywhere in the world simply by doing a google search of his/her name.

Second, the cost of posting the legal notice on a designated web site, would be de minimus. The cost of this service could be reduced from several hundred dollars to a few dollars.

Finally, service by an internet posting would be an environmentally sound method of service. Hundreds of pages of news print could be saved a year. If the posting was made through a court run web site, the result could be an infusion of capital to the always cash strapped court system. The only downside to allowing service by posting on the internet is that the newspapers will lose advertising sales

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