Under Virginia law, the State could refuse to recognize the foreign divorce since neither spouse was a good faith domiciliary in the foreign country at the time of divorce. However, the State would find the divorce valid since there is a strong presumption that a subsequent marriage is valid and that prior marriages were terminated by divorced or death. Virginia court would apply the principles of of estoppel and laches to find the divorce valid and bar any challenge to the validity of the divorce.

OPINION

We have received your April 3, 2008 request for a legal opinion as to "whether New York Courts recognize the validity of the Mexican divorce between Number Holder ("NH") and Bonner M.B. M~ and if New York applies the estoppel principle for divorce and if Bonner M.B. M~ is the legal spouse of the Number Holder."

We conclude that:

1) The laws of Virginia govern in this case

2) The finding of PR 02-047 is dispositive of this case

3) Virginia would recognize the validity of the Mexican divorce

FACTS*

A marriage license shows the NH married Bonner M~ B. in Houston, Texas, on June 2, 1960. According to the Columbia, Maryland District Manager's memorandum, in November, 1970, the NH was living in New York. In November 1970, Mrs. M~ was living in Texas, according to her caregiver. On November 6, 1970, the NH and Mrs. M~ entered into a _*separation agreement in Houston, Texas. According to the NH, he became a resident of Mexico for one day and obtained a divorce from Bonner M~ on 11/7/70.

A copy of the divorce decree from the first civil court of Ciudad J~, Chihuahua, Mexico, states that the NH personally appeared before the subscribing judge, ratified the complaint including his express submission to the jurisdiction and competence of the court, and submitted the certificate of his inscription in the Official Registry of the City of Chihuahua. An attorney for Ms. Bonner M~ appeared and answered the complaint, and expressly submitted his client to the jurisdiction of the court. The divorce decree further approved and adopted the existing separation agreement.

The NH filed a claim for retirement benefits on April 1, 1999. According to that claim, the NH remarried in February 1975 in Florida.

Bonner M~ filed an application for spouse's benefits on the NH's record on February 15, 2008. You have informed us that the NH is alive and receiving retirement benefits in Virginia. You have told us that based on ORS, CSR, his MBR, and the THIS query, you believe the NH resided in the state of Virginia at the time Bonner M~ filed her claim for benefits on the NH's account.

ANALYSIS

GN 00305.170 states that the determination of the validity of a divorce is based on the law of the state of the worker's domicile at the time of filing of an application for divorced spouse's benefits. In this case, assuming that Mr. M~ was domiciled in Virginia at the time of Bonner M~'s filing for divorced spouse's benefits, the law of Virginia would apply to determine whether the divorce was valid.

The analysis from a precedential opinion regarding Virginia law (PR 02-047) found in the POMS at PR 06210.052, governs the analysis in this case. In the Virginia case of Richard H. M~, the Agency determined that Virginia would find that a Mexican divorce was valid under circumstances parallel to those in the M~ divorce.

In the Richard H. M~ case, Isabelle L. M~ married Donald T~ on June 4, 1952 and obtained a divorce from J~, Mexico on November 29, 1963. Both parties were domiciled in New York at the time of the divorce. Isabelle appeared in person in the Mexican court and proved that she was registered in the official book of residents of J~. Donald T~ was represented by an attorney and expressly submitted to the jurisdiction of the court. A separation agreement previously entered into by the couple was incorporated into the divorce decree. Both parties remarried. Isabelle's second husband, Richard M~ died on October 29, 2001 and Isabelle applied for surviving spouse's benefits on Richard M~'s record.

The Agency determined that under Virginia law, while generally a foreign divorce will be recognized as valid, that is not the case when neither spouse was a good-faith domiciliary in the foreign country. So the Agency concluded that Virginia could refuse to recognize the divorce because neither Isabelle nor Donald T~ was domiciled in Mexico at the time of the divorce. However, the Agency went on to find that a Virginia court would likely find the divorce valid because there is a strong presumption under state law that a marriage last-in-time is valid and that prior marriages were terminated by divorce or death.

Additionally, the Agency determined that a Virginia court would apply the doctrine of estoppel to find the divorce was valid, since both Isabelle and Donald T~ submitted to the Mexican court's jurisdiction. Alternatively, the court would apply the doctrine of laches to preclude any challenge to the divorce's validity because of the delay in time before any attack on the divorce and the ex-husband's remarriage.

The M~ divorce parallels the factual situation in the Richard M~ case, and therefore, we conclude that Virginia would find the Mexican divorce to be valid.

Very truly yours,

Barbara L. S~

Chief Counsel

By: ____________

Jennifer S. R~

Assistant Regional Counsel

_* The only documents provided are the divorce decree, marriage license, and copy of Mrs. M~'s application for spouse's benefits. The remainder of the facts are derived from the memorandums from your office and the Columbia, MD, District Manager. This opinion is based on the facts as presented. However, we recommend verification of the address of the NH at the time of the filing of Mrs. M~'s application since it is crucial to the application of the appropriate state's law.

Neither Oregon, Virginia, or California would recognize the claimant's Dominican Republic divorce from her subsequent husband as valid. Under the principles of estoppel, the claimant and her subsequent husband may not challenge the validity of the divorce. While SSR 88-15c provides authority for SSA to challenge an invalid divorce decree even where the parties are estopped from doing so, it may not collaterally attack a divorce in all situations. Equitable considerations weigh in favor of this claimant such that an attack would likely not be upheld if challenged. Thus, the claimant may be considered "unmarried" for the purposes of entitlement to benefits as the NH's divorced spouse.

The Coos Bay, Oregon Field Office has asked whether a divorce granted in the Dominican Republic, where neither party resided, would be considered valid in the State of Virginia or the State of California. If the divorce is not valid, the Field Office has asked whether the claimant, Georgia D~, is estopped from denying the validity of the divorce.

FACTUAL BACKGROUND

You informed us that claimant, Georgia D~, filed a divorced spouse claim on May 25, 1999, on the account of her first husband, Ralph R. D~ (wage earner). Claimant was married to the wage earner in 1957 and was divorced from him on September 26, 1970 in California. The validity of this divorce is not in question.

Claimant then married William T. S~ in California on June 9, 1974. In November 1975, William S~ filed for divorce in the Dominican Republic. At the time of the divorce, Mr. S~ was a resident of Virginia, and claimant was a resident of California. Mr. S~ was present in the Dominican Republic at the time of the divorce, claimant was not, but was represented by proxy. Mr. S~ has since remarried. Claimant did not remarry.

DISCUSSION

The claimant is entitled to divorced spouse's benefits based on the account of her first husband, Ralph D~ if: (1) the wage earner is at least 62 years old; (2) she is the wage earner's divorced wife; (3) she was validly married to the wage earner; (4) she was married to the wage earner for at least ten years immediately before she divorced the wage earner; (5) she applies; (6) she is not married; (7) she is 62 or older; (8) she is not entitled to an old-age or disability benefits based on a primary insurance amount that is equal to or larger than the full wife's or husband's benefit; and (9) she has been divorced from the wage earner for a least two years. See 42 U.S.C.A. § 402(b) and 416(d); 20 C.F.R. § 404.331 (1999).

The sole issue here is whether claimant is "not married" for the purposes of obtaining divorced spouse benefits on the account of Ralph D~, her first husband. See 42 U.S.C.A. § 402(b)(1)(C); 20 C.F.R. § 404.331(c). For the reasons discussed below, we believe that the claimant could be considered "not married" for the purposes of entitlement to benefits as the divorced spouse of Ralph D~.

Which State's Law Applies?

The Social Security Act and regulations provide that, in determining family status, the claimant is the spouse of the wage earner if the courts of the State in which the wage earner is domiciled at the time the claimant files the application would find that the claimant and the wage earner are married. See 42 U.S.C.A. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. This requirement applies where the marital status at issue is that of the claimant and the wage earner. Here, the marital status of the claimant and the wage earner is not at issue. Instead, we are evaluating the marital status of the claimant and her second husband, William S~. In a case analogous to this one, OGC Region V determined that the law of the State in which a claimant is domiciled at the time she files an application is the law applicable in determining the validity of a divorce of the claimant and a spouse who is not the wage earner. See Memorandum from OGC to ARC, Programs, Validity of Dominican Republic Divorce and Application of Minnesota Law of Estoppel, July 25, 1986; see also Memorandum from OGC Region III to Regional Commissioner Region III, H~, M~ [SSN], Validity of Haitian Divorce - Maryland, June 13, 1985.

It is not clear which State's law would be applied here in determining the validity of the claimant's divorce from William S~. It could be Oregon, where claimant lives, or it could be California, where the wage earner Ralph D~ lives. In addition, as claimant and her second husband were not living in Oregon at the time of the divorce, Oregon courts could apply California law (where claimant lived at the time of the divorce), or Virginia law (where claimant's second husband lived at the time of the divorce). Likewise, California courts could apply California law or Virginia law. As it is unclear which State's law would apply in this case, this opinion will consider the laws of Oregon, California, and Virginia.

A divorce obtained in the Dominican Republic is invalid in the majority of States if neither of the parties is domiciled there.

As the Dominican Republic is not a State, a Dominican Republic divorce decree is not entitled to recognition in the United States by virtue of the Full Faith and Credit Clause of the United States Constitution (Art. IV, Sec. I). Instead, its recognition is governed by considerations of comity. Under comity, courts may deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments. See Montemurro v. Immigration & Naturalization Service, 409 F.2d 832, 832 (9th Cir. 1969). The majority of States refuse to recognize a foreign divorce, regardless of its validity in the nation awarding it, unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the divorce decree was rendered. See Annotation, Domestic Recognition of Divorce Decree Obtained in a Foreign Country and Attacked for Lack of Domicile or Jurisdiction of Parties, 13 A.L.R. 3d 1419 (1967). This is true even if, as here, both parties were present before the Dominican Republic court in person or by proxy. Id.

Consistent with the majority of States, California, Virginia and Oregon would find the Dominican Republic divorce invalid. California has specifically held that a divorce may not be validly granted in a State or country where neither party is domiciled. See Ryder v. Ryder, 37 P.2d 1069 (Cal. Dist. Ct. App., 3rd Dist. 1934); see also, Memorandum from OGC Region IX to Assistant Regional Commissioner Region IX, John J~, [SSN], March 11, 1986 (in California, jurisdiction to grant a divorce rests upon bona fide domicile; where neither party is domiciled within a State, no valid divorce may be granted and all proceedings are void).

While Virginia courts have not dealt with this issue specifically, case law indicates that Virginia courts would follow the majority view. In Howe v. Howe, 18 S.E.2d 294 (Va. 1942), the Supreme Court of Virginia found that an Arkansas divorce decree was invalid where the husband had not established domicile in Arkansas, because he had no intention to remain there permanently or indefinitely. Id at 118-119. Howe further found that "jurisdiction is essential" and that a "decree of divorce by a court not having jurisdiction of both parties and of the subject matter does not come within the full faith and credit clause of the Federal Constitution and is entitled to no recognition whatever in the courts of another State or country." Id at 121. This case remains good law in Virginia. In addition, a Fourth circuit case indicates that a Virginia

District Court found that a Mexican decree was invalid. See Harrison v. Harrison, 214 F.2d 571 (4th Cir. 1954). Based on this history, if presented with the facts here, we believe that Virginia courts would likely find the Dominican Republic divorce decree is invalid.

Likewise, Oregon courts have stressed that domicile is essential to the validity of a divorce decree, such that at least one of the parties must be domiciled in the State which granted the decree. See Kelly v. Kelly, 191 P.2d 656, 662 (Or. 1948). Based on the necessity of domicile, Oregon would find that claimant and William S~'s divorce was invalid, as the Dominican Republic imposes no requirement of residence on individuals seeking to be divorced there, and as there is no evidence that William S~ or the claimant were domiciled in the Dominican Republic.

What is the effect of the invalid divorce on the Claimant's application for benefits?

Given that the Dominican Republic divorce decree is invalid in Virginia, California and Oregon, you asked whether estoppel would apply in this case.

Estoppel has been traditionally used by the courts as a judicial alternative to direct recognition of a bilateral foreign divorce, like the divorce here. See 13 A.L.R. 3d 1419. Instead of recognizing that the divorce is valid, the court will determine that a party is estopped from challenging the validity of the divorce when they participated in it or benefited from it. For example, where one spouse has participated in a divorce, and later challenges the divorce to inherit from the "ex-spouse" under State inheritance laws, courts may hold that the spouse may not challenge the divorce to further his or her interests. See Stephen C. Glassman, The Tangled International Divorce Web: Recognition and Enforcement at Home, 9 Fam. Advoc. 4 (Spring 1987). Estoppel has been applied to prevent a party to an invalid divorce from attacking the validity of that divorce in all of the States relevant to this discussion. See Swint v. Swint, 395 P.2d 114 (Or. 1964); McNeir v. McNeir, 16 S.E. 2d 632 (Va. 1941); Bartsch v. Bartsch, 132 S.E. 2d 416 (Va. 1963); Spellens v. Spellens, 317 P.2d 613 (Ca. 1957).

Under the rules described above, both the claimant and William S~, would be estopped from challenging the validity of their divorce, because they were participants in the divorce, the divorce was obtained many years ago in 1975, and William S~ has remarried in reliance on the divorce. It is important to note, however, that the claimant does not want to challenge the validity of her divorce from William S~. She argues that the divorce is valid, so that she may receive benefits on the account of her first husband Ralph D~.

Even though the claimant and William S~ may not challenge the validity of their Dominican Republic divorce, this does not mean that the divorce is valid. Further, case law adopted by SSA as its official interpretation, suggests that SSA may challenge the validity of an invalid divorce even if the parties are estopped from doing so. See Slessinger v. Sec'y of Health & Human Svcs, 835 F.2d 937 (1st Cir. 1987), SSR 88-15c. In Slessinger, the claimant sought to have SSA recognize a Dominican Republic divorce decree purporting to end her marriage to her second husband so that she could be considered "not married" and entitled to mother's benefits on the earnings record of her deceased first husband under section 202(g)(1) of the Act. See42 U.S.C.A. § 402(g)(1). Applying the law of the State of Rhode Island, SSA refused to recognize the Dominican Republic divorce decree and denied the claim. The federal district court and the Court of Appeals for the First Circuit affirmed SSA's decision and SSA published the opinion as Social Security Ruling (SSR) 88-15c. Under SSR 88-15c, estoppel was held to be inapplicable to the Secretary, who was not a party to the divorce or a beneficiary of it. Under this Ruling, SSA may collaterally attack the validity of a divorce, and find that a claimant remains married.

Considering SSR 88-15c, one might suggest that SSA may be able to challenge the claimant's Dominican Republic divorce from William S~ and deny her claim for benefits on Ralph D~'s account, because claimant would be viewed as still married to William S~. While Slessinger indicates that SSA may challenge an invalid divorce, SSA should first determine whether under State law as applied to the particular facts of each case, a person who was not a party to the divorce (such as SSA) may challenge the divorce decree. Notwithstanding SSR 88-15c, it is our opinion that SSA should not engage in such a challenge here.

Family issues such as marriage and divorce are State law issues and are governed by equitable considerations. Even in cases where a divorce has been held invalid due to lack of jurisdiction, the majority of States have held that a divorce will not be denied recognition where the equities weigh toward divorce. See Howe, 18 S.E.2d at 300. A "balance-the-equities" approach has been applied in a case involving Social Security benefits, even where the person challenging the divorce decree was not a party to the divorce and received no benefit from it. See Thompson v. Harris, 504 F.Supp. 653, 655 (D. Mass. 1980) ("[i]t would not be inequitable as a matter of law to permit . . . [the claimant] to challenge the validity of [her ex-husband's] Mexican divorce from his first wife"). Even in Slessinger, the court apparently applied equitable principles to determine whether SSA could challenge a divorce decree under those particular facts in accordance with the relevant State law in that case. "No . . . principles of estoppel apply to the Secretary. The Secretary has derived no benefit from the decree that would render it inequitable for the Secretary to contest the decree. It would be an odd rule that would require the Secretary to give effect to an otherwise invalid foreign divorce decree (even, hypothetically, one obtained for the sole purpose of re-establishing an entitlement to mother's insurance benefits) merely because a participant in the divorce would be estopped from a collateral challenge." Slessinger, 835 F.2d at 941 (emphasis added).

Here, there are several factors that weigh toward equitable recognition of the divorce in question: (1) claimant and William S~ obtained the Dominican Republic divorce over twenty years ago; (2) the divorce was bilateral, meaning that both parties were present at the proceedings (claimant by proxy) and consented to the divorce; and (3) the claimant's second husband, William S~, has remarried.

On numerous occasions prior to the promulgation of SSR 88-15c, SSA found parties "not married" for Social Security purposes, even where, as here, a marriage ended in an invalid divorce, and both parties to the divorce were estopped from challenging its validity. These OGC opinions are not inconsistent with the position that SSA will apply State law and determine whether, under the facts of a particular case, it should challenge an invalid divorce decree.

This recognition of invalid divorces in some situations has been incorporated into the POMS. In a different fact situation than here, under POMS GN 00305.180, a claimant who is estopped from denying the validity of a divorce from a wage earner, is considered the divorced spouse of the wage earner for the purposes of claiming divorced spouse's or surviving divorced spouse's benefits. See Memorandum from OCG Region VIII to Regional Commissioner, Applicability of Estoppel Under Montana Law, September 12, 1984; Memorandum from OGC Region I to Assistant Regional Commissioner, Jennie K. R~, November 28, 1984; Memorandum from OGC Region I to Assistant Regional Commissioner, Programs, Is the Defendant in an Invalid Dominican Republic Divorce Estopped from Denying its Validity?, December 16, 1985.

While SSA's challenge of an invalid divorce was upheld in Slessinger, this case is distinguishable. In Slessinger, there was no indication in the opinion that either of the parties to the invalid foreign divorce had remarried in reliance on that divorce. Further, the time frame was very different in Slessinger. In that case, the claimant applied for widow's benefits on the account of her first husband who died on November 29, 1981. She married her second husband on October 22, 1983, and divorced eight months later on August 6, 1984. She applied for benefits on September 24, 1984. This timeframe suggests that the claimant in Slessinger obtained a divorce from her second husband solely for the purpose of obtaining benefits on the account of her first husband. Here, the claimant and William S~ obtained their invalid divorce more than twenty years before she applied for benefits. Thus, while SSA successfully challenged an invalid divorce decree in Slessinger, that case materially differed from this case and we believe that the facts in this case raise equitable considerations that appear to be more favorable toward recognition of the claimant as "not married" than would be the facts in Slessinger.

Therefore, notwithstanding authority providing that SSA may challenge an invalid divorce decree even where the parties are estopped from doing so, it may not collaterally attack a divorce in all situations. Equitable considerations weigh in favor of the claimant here such that an attack would likely not be upheld if challenged. For the reasons discussed above, we believe that the claimant could be considered "not married" for the purposes of entitlement to benefits as the divorced spouse of Ralph D~.

LUCILLE G. M~

Regional Chief Counsel, Seattle Region

By

AMY G~

Assistant Regional Counsel