Even if divorce proceedings had been properly adjudicated under Mexican law, such divorce would be a nullity because neither the claimant nor the wage earner domiciled in Mexico at the time. The claimant was not validly divorced from the wage earner; therefore, she is estopped from denying the validity of the divorce since she remarried after the divorce. The claimant is the wage earner's widow but would not be entitled to widow's benefits on his record because of her remarriage. However, SSA should consider the claimant's divorce from the wage earner a final divorce and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits.

QUESTION

You requested an opinion as to whether Beatriz S~ (the claimant) could become entitled to widow's benefits as a surviving divorced spouse on the record of Juan A. M~ (the wage earner).

SUMMARY OF EVIDENCE

The claimant was born on November 5, 1934. On April 8, 1952, the claimant and the wage earner were married in Tucson, Arizona. The claimant and the wage earner purportedly divorced in May 1969.

On November 1, 1969, the claimant participated in a marriage ceremony with Angel S~ in Mexico. Sometime around 1972 or 1973, the wage earner participated in a marriage ceremony with Guadalupe M~. On January 9, 1983, the wage earner died in the State of California. Guadalupe M~ is receiving widow's benefits as the surviving spouse of the wage earner.

On February 19, 1985, the claimant and Mr. S~ were granted a divorce decree in Mexico. On July 4, 1985, the claimant married Silverio V~ in the State of Nevada. On July 14, 1986, the claimant and Mr. V~ were granted a divorce in the State of Arizona. On June 18, 1989, the claimant married Abelardo M~ in Arizona. On July 27, 1993, the claimant and Mr. M~ were granted a divorce in Arizona.

ANALYSIS

An individual may qualify for Title II widow's benefits as a surviving divorced spouse if he or she was married to the wage earner for at least ten years prior to the date their divorce became final; he or she is at least 60 years old or at least 50 years old and has a disability as defined by the Social Security Act; and is unmarried (or married under circumstances not applicable here). 42 U.S.C. § 416(d); 20 C.F.R. § 404.336 (2004); Program Operations Manual System (POMS) RS 00207.001. Determination of the claimant's family status is governed by the laws of California, which is the state where the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345 (2004); POMS GN 00305.170.

The claimant has filed two applications for widow's benefits as the surviving divorced spouse of the wage earner. The first application was filed on October 20, 1994. This application was denied on January 12, 1995, because the claimant had not provided proof of her divorce from the wage earner. SSA informed the claimant that, if she disagreed with this denial determination, she had a right to appeal within sixty days of receipt of the decision. SSA also informed the claimant that she had a right to file a new application at any time, instead of appealing. However, if she filed a new application, she might lose some benefits or not qualify for benefits, and SSA could deny a new application using the denial determination, if the facts and issues were the same. The claimant did not appeal the initial determination.

Eight years later, on August 22, 2003, the claimant filed a second application for widow's benefits. The claimant asserted she retained the services of an attorney in Mexico, to file a divorce suit in Tijuana, Baja California, Mexico. The claimant furnished a document entitled "DIVORCE" and dated May 24, 1969. This document states that the claimant signed all of the necessary documents to file a divorce suit, by power of attorney, and that "final decree" of divorce would be obtained within a reasonable time and would be recorded in the State of Tlaxcala, Mexico. The document served as a receipt for the $80.00 the claimant paid to have the divorce processed by Tomas A~, an attorney. Mr. A~ signed the document over the title of Treasurer. The claimant asserted that she contacted the registrar in Tijuana, Mexico, to inquire about her divorce from the wage earner and, apparently, was told that no divorce proceedings had been filed. She also contacted another attorney, Mr. Fidel H~, in Mexico, who informed her that her former attorney had since died and no records were available. Mr. H~ stated that the copy of the "DIVORCE" document did not contain a seal and that the "receipt was not of the type he would furnish himself." There is no evidence to indicate that a divorce decree or judgment ever was entered in the State of Tlaxacala or any other jurisdiction. When a claimant does not appeal an initial denial determination, such determination becomes final and binding (doctrine of res judicata). 20 C.F.R. § 404.905 (2004); Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985). However, if a claimant submits new facts or evidence, the doctrine of res judicata will not apply and SSA will adjudicate the second application and give the claimant the right to appeal any aspect of the new determination. POMS GN 03101.160; GN 04040.010C. Here, the claimant has submitted new facts and evidence regarding her divorce from the wage earner; therefore, the doctrine of res judicata does not apply and SSA can adjudicate the second application in the usual manner.

The claimant had the burden of proving that she had been divorced from the wage earner. 20 C.F.R. § 404.336 (2004). Because the claimant's divorce proceeding apparently was never properly brought or acted upon in a Mexican court, her "divorce" was void on its face and, therefore, had no legal effect. See Rudnick v. Rudnick, 280 P.2d 96, 101 (Cal.App. 4 Dist. 1955) (experts on Mexican law testified that "fictitious" divorce decree was void on its face; a search of Mexican court records revealed that no divorce action had been brought or acted upon).

Even if this divorce proceeding had been properly adjudicated under Mexican law, such divorce was a nullity because neither the claimant nor the wage earner were domiciled in Mexico at the time. See duQuesnay v. Henderson, 74 P.2d 294, 295 (Cal.App. 2 Dist. 1937) (domicile is necessary to give court jurisdiction over subject matter of divorce; therefore, Mexican divorce decree was a "nullity" because of lack of jurisdiction over divorce of individuals domiciled in California); see also CAL. FAM. CODE § 2091 (Uniform Divorce Recognition Act). In this case, the claimant and the wage earner were domiciled in Arizona at the time of their purported Mexican "divorce," but the result would be the same under Arizona law. See Unruh v. Industrial Commission, 301 P.2d 1029, 1031 (Ariz. 1956) (Mexican court did not have the "slightest semblance of jurisdiction" to adjudicate a divorce of individuals domiciled in Arizona; therefore, Mexican divorce was "void"). Jurisdiction of the Mexican courts cannot be conferred by consent of the parties. See Kegley v. Kegley, 60 P.2d 482, 484 (Cal.App. 3 Dist. 1936) (subject matter jurisdiction over divorce of parties whose domicile was in California cannot be conferred to Mexican court by estoppel or mutual consent of the parties). Agency policy is consistent with California and Arizona law and supports the conclusion that such a divorce would be a nullity. POMS GN 00305.170 ("A divorce granted in a jurisdiction in which neither party is domiciled is not valid.").

Although the claimant was not validly divorced from the wage earner, she is estopped from challenging the validity of her divorce from the wage earner because she subsequently married. See Unruh, 301 P.2d at 1031 (the validity of a divorce cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation by a spouse who takes advantage of such decree by remarrying); Pierson v. Anderson, 70 Cal. Rptr. 266, 271 (1997) (if a husband or wife enters into a subsequent marriage during the lifetime of the estranged spouse, he or she will be estopped from claiming the rights of a lawful spouse). These cases are consistent with Agency policy, which indicates that an individual will be estopped from denying the validity of a divorce if that individual "remarried after the divorce." POMS GN 00305.175; see also POMS PR 06405.006 (especially PR 86-026-applying California law and concluding that the doctrine of estoppel applies whenever the spouse to be estopped has sought to benefit from a divorce by remarriage; and PR 85-028 (applying California law and concluding that the California courts would extend the application of the doctrine of estoppel to cover cases where the affected parties have acted in reliance upon a colorable, but bogus, Mexican divorce decree).

Based on the foregoing, the claimant is the wage earner's widow but would not be entitled to widow's benefits on his record because of her remarriage. However, because claimant would be estopped from asserting the invalidity of her divorce from the wage earner and would be precluded from being considered the wage earner's spouse, SSA should consider the claimant's divorce from the wage earner a final divorce and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits. POMS GN 00305.180A.3, which references GN 00305.180C.2.

Finding the claimant eligible for widow's benefits as the wage earner's surviving divorced benefits would not make Guadalupe M~ ineligible for widow's benefits on the wage earner's record. Guadalupe M~, to whom the wage earner was "married" at the time of his death, is currently receiving Title II benefits as his widow. Under California law, the wage earner's marriage to Guadalupe M~ is presumed valid. V~ v. Superior Court of Los Angeles County, 88 Cal. Rptr. 281, 283 (1970) ("When a person has entered into successive marriages, a presumption arises in favor of the validity of the second marriage"); see also POMS GN ATL00305.030 (Presumption of Validity of the Last Marriage). In such cases, the burden is on the individual attacking the validity of the second marriage to overcome the presumption. V~, 88 Cal. Rptr. at 283. However, in this case, the claimant is not attacking the validity of the wage earner's marriage to Guadalupe M~.

Also, California recognizes the doctrine of "putative spouse," that is, if either party or both parties believed in good faith that a marriage is valid, the court shall declare the party or parties to have the status of a putative spouse and (each) is a legal spouse for purposes of determining property rights. CAL. FAM. CODE § 2251; see Smith v. Garvin, 207 Cal. Rptr. 561, 567-571 (1984). This good faith belief must be objectively reasonable. Depasse v. Harris, 118 Cal. Rptr. 2d 143, 156 (2002). The putative spouse doctrine has been relied upon to find a claimant is entitled to Social Security benefits. Aubrey v. Folsom, 151 F.Supp. 836, 840 (N.D.Cal. 1957) (surviving putative spouse in California qualifies as a widow and is entitled to mother's insurance benefits); see also Knott v. Barnhart, 269 F.Supp.2d 1228, 1235 (E.D.Cal. 2003) (claimant who had her marriage annulled after she discovered "husband's" previous marriage had not been dissolved was his putative spouse and was entitled to benefits as his divorced spouse). California's putative spouse doctrine is consistent with the Social Security Act's provision by which an individual may be "deemed" a wage earner's spouse if the individual, in good faith, went through a marriage ceremony with the wage earner that would have resulted in a valid marriage except for a legal impediment. 42 U.S.C. § 416(h)(1)(B)(i); 20 C.F.R. § 404.346 (2004). Based thereon, if Guadalupe M~ had a good faith belief that she was the wage earner's legal spouse, she is his putative spouse and is entitled to benefits as his widow.

DIVORCE -RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -CA

Under California law, where a spouse, although wholly innocent of the procuring of a divorce decree by the other spouse, remarries in reliance thereon, he or she is estopped from questioning the validity of the divorce. (Marital Status of Henrietta C~ under California and Ohio law; RAIX; S~; May 29, 1986).

DIVORCE -RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -CA

In the context of divorce, the estoppel doctrine applies even where the reliant spouse had only indirect information about the divorce proceedings or where his/her subsequent marriage was by common law. (Marital Status of Henrietta C~ under California and Ohio Law; RAIX; S~; May 29, 1986.

You have requested our assistance in determining the marital status of Henrietta C~, an applicant for spouse's benefits. Ms. C~ has filed alternative applications on the accounts of two retired wage earners, Paul A~, a California domiciliary, and Virgil N~, domiciled in Ohio. You have concisely summarized the pertinent facts, as follows:

Mr. A~ married Ms. C~ in 1937, left her in 1939, returned for four months in 1946, and then left her again. She has not seen him since. Mr. A~ obtained a void Mexican divorce 1/15/47 and states he thought his lawyer contacted Ms. C~ about it. He remarried 1/28/47. Ms. C~ reports that she did not receive notice but that, in 1947 or 1948, she heard indirectly (through a cousin) that Mr. A~ had divorced her and remarried.

In 12/55, Ms. C~ began cohabiting with Virgil N~ in Ohio, while he was still married to a prior wife. He divorced the prior wife in 1/67. Thus, from 1/67 until now, Mr. N~ and Ms. C~ believed themselves free to marry and have continued in their common-law relationship. They have held themselves out as man and wife, conducted their business as man and wife, and referred to each other as a common-law spouse in Wills drawn up in 1978. Barring a short period in Michigan the two have been domiciled in Ohio throughout their relationship.

Your initial question is whether Ms. C~ is estopped from questioning the validity of the invalid divorce decree. Insofar as this issue relates to Ms. C~ entitlement on Mr. A~ account, it must be resolved based on the laws of his state of domicile, California. Section 216(h) (1) (A) of the Social Security Act; 20 C.F.R. §404.345. "[I]t has frequently been held in California that where a spouse, although wholly innocent of the procuring of a divorce decree. by the other spouse, remarries in reliance thereon, he or she is estopped to question the validity of the divorce on jurisdictional grounds." In Re Marriage of Toth, 38 Cal. App. 3d 205, 212, 133 Cal. Rptr. 131, 136(1974). In this case, although Ms. C~ took no part in the defective divorce proceedings, she nevertheless attempted to establish a common law marriage in reliance upon the Mexican decree. This reliance now prevents her from challenging the decree.

You question whether the estoppel doctrine applies where, as here, the reliant spouse had only indirect information about the divorce proceedings or where, also as in this case, the marriage was by common law. The doctrine of estoppel in this context is based on the principle that one cannot "take the benefits of a divorce decree when it suits his purpose and then reverse his position and repudiate the divorce decree on the ground that it is void for want of jurisdiction (even though it may be) when it is no longer profitable or to his advantage to do so." Id. Accordingly, estoppel is properly invoked whenever the' spouse to be estopped has sought to benefit from a divorce decree by remarriage. As long as the intent to benefit is present, the degree of knowledge concerning the divorce proceedings is immaterial. The consequences of estoppel cannot be avoided merely because the party to be estopped carelessly relied on rumors or otherwise failed to make an adequate investigation of the matter. Smith v. Smith, 157 Cal. App. 2d 46, 320 P.2d 100, 102 (1958); GC opinion re Phil W. H~ D-3973, August 12, 1958. 1/

You next ask how the recent enactment of section 78(c) of California's Probate Code affects the estoppel doctrine as applied to divorce. The statute, which became operative on January 1, 1985, provides that, for probate purposes, the term "surviving spouse" does not include "[a] person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony with a third person." As indicated by the Law Revision Commission Comment to this addition, the provision merely was intended to be consistent with the prior California law of estoppel as developed by the courts. (.Reprinted in West's Annotated Cal. Codes, Probate Code, Vol. 52, 1985 Cumulative Pocket Part, following section 78, at 24-25.) Your assumption that section 78 does not identify every circumstance where estoppel may apply is correct. Thus, in answer to your specific questions, estoppel still applies to participants in common law as well as ceremonial marriages and to third parties relying upon a void divorce.

Your final question about California law is whether there have been any changes in the approach to laches since the issuance on May 11, 1978 of our opinion re Howard C. E~ The equitable defense of laches may be invoked against a party who has failed to assert his/her rights in a timely fashion, causing thereby some detriment or prejudice to another. This venerable doctrine has not been modified recently. Our latest discussion of laches is contained in GC opinion re John J~, March 11, 1986.

Inasmuch as Ms. C~ status for purposes of her claim on Mr. N~ account is governed by Ohio law, you also want to know whether, based on the foregoing legal and factual circumstances, Ms. C~ would be treated as Mr. N~ wife under Ohio law. We are unable to answer this question because Ohio lies outside our Region. Therefore, we are forwarding your memorandum, along with the claims files, to the appropriate Regional Counsel's Office (Region V, Chicago, Illinois) for response. That office will be corresponding with you directly.

1/ Both these cases involved the estoppel of a "spouse" who married a party to a prior invalid divorce. As these cases suggest, the key to estoppel applies (in the absence of countervailing circumstances such as undue influence, Fraud, incapacity), whether the person subject to estoppel was a party to the defective divorce or a subsequent "spouse."

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -RIGHTS ARISING FROM ESTOPPEL OF PRIOR SPOUSE TO ASSERT INVALIDITY OF DIVORCE

DIVORCE -RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE

Where an individual has actively tried to procure a divorce, through apparently legitimate channels, has obtained an invalid, void, or bogus decree, and has relied upon such decree in contracting a subsequent marriage, that individual will be estopped from denying the validity of the divorce. (A~, Edward T.; RA IX; S~; October 17, 1985)

The claimant, Marie A. S~, has filed an application for wife's insurance benefits based on the account of her first husband, Edward A~ . Ms. S~ and Mr. A~ were divorced in June 1955. In 1959 Ms. S~ married Donald S~. They were divorced in approximately 1962. Ms. S~ married her third husband, Burton G. S~, in 1965. In an attempt to end this marriage, Ms. S~ wrote to an address in Tijuana, Mexico.

Two or three months later, she received a document in the mail indicating that a divorce decree had been granted on April 5, 1969. Relying upon this decree, Ms. S~ married Charles S~, who had requested and received a similar decree purporting to terminate his marriage. The S~ were divorced in December 1980.

Although you have been unable to obtain a copy of the purported Mexican divorce decree, you have concluded on the basis of "secondary evidence" that the decree is not bona fide and that, in fact, no legal proceedings were undertaken in connection with Ms. S~ attempted divorce from Mr. S~. You have asked for our opinion as to whether or not Ms. S~ is estopped from challenging the validity of the bogus divorce decree, for purposes of determining if she meets. the "is-not married" requirement for entitlement to wife's benefits as the divorced wife of her first husband. Since you have indicated that the relevant parties are California domiciliaries, resolution of the problem requires the application of California law. Section 216(h)(1)(A) of the Social Security Act; 20 C.F.R. §404.345.

It has long been the rule in California that

[t]he validity of a divorce decree cannot be contested by a party who has procured the decree or a party who has remarried in reliance thereon ....

Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1, 6 (1950); see, e.g., GC opinions re Mae P. C~ D-15516, November 29, 1973, and Ivan R. G~, D-3974, August 22, 1958. The estoppel doctrine is typically used to protect innocent third parties who relied on a foreign divorce decree in good faith as against an attack on the validity of the decree by one who participated in its procurement. See e.g., Rediker v. Rediker, cited above (Cuban decree; court lacked jurisdiction); Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 989 (1916) (Nevada decree; court lacked jurisdiction); Schotte v. Schotte, 203 Cal. App. 2d 28, 21 Cal. Rptr. 220 (1962)--(Mexican "mail order" decree; court lacked jurisdiction). In Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (1957) the principle was extended to forestall an attack on a marriage contracted in apparent reliance upon a California interlocutory decree (which had not yet became final). See GC opinion re Ellis H. A~, April 9, 1958. For the reasons stated below, it is our opinion that the courts would further extend application of the estoppel doctrine to cover cases, such as this, where the affected parties have acted in reliance upon a colorable, but bogus, divorce decree.

Estoppel is an equitable doctrine. As such, it partakes of the flexibility characteristic of equity. In general, equity adjudicates with reference to the substance of a particular transaction, rather than its form. See Smitton v. McCullough, 182 Cal. 530, 189 P. 686 (1920). Accordingly, in many instances, in order to effect equity and justice, the law disregards the difference between a valid and an invalid/void marriage or divorce. See Schotte v. Schotte, cited above. Recourse to estoppel in this context is rationalized in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised-not that the act is valid . . [for] estoppel does not make valid the thing complained of but merely closes the mouth of the complainant.

Harlan v. Harlan, 70 Cal. App. 2d 657, 161P.2d'490, 493 (1945), quoting In re Estate of Davis, 38 cal. App. 2d 579, 584, 101P.2d 761 (1940Y.--

Although, characteristically, estoppel is used as a means to sidestep defects underlying a divorce decree emanating from a court, recourse to the doctrine may also be appropriate where, contrary to the understanding of the parties actively participating in the action, there was no court involvement. As far as equity is concerned, it should be immaterial whether a decree is ineffective because the issuing court lacked jurisdiction, or because, as here, the decree was not issued by an existing court. In either case the equitable principle is the same: "when a party to a purported divorce accepts it as legitimate and remarries, such party is estopped from alleging that the divorce was improper." Mattos v. Correia, 274 Cal. App. 2d 413, 79 Cal. Rptr. 229, 232 (1969). Sitting in equity, the California courts have emphasized the conduct of the party to be estopped (i.e., attempted procurement of a divorce and subsequent reliance on the "decree" obtained), rather than the particular legal defects of the decree. In equity, it is the understanding and actions of the concerned parties which are of paramount importance, not legal form.

It follows that, on the facts you have found, Ms. S~ would be estopped from attacking her bogus divorce. Like the estopped parties in the routine divorce cases cited above, Ms. S~ engaged in a futile effort to procure a divorce. The only difference is that her attempt fell short for a different reason. The standard "mail order" divorce is found wanting for lack of jurisdiction. Ms. S~ divorce fails for lack of any true judicial imprimatur. Neither type of decree has legal force in California. Since Ms. S~ actually and, apparently, in good faith, relied upon her purported decree in marrying her next husband, Mr. S~, she would be estopped from challenging the decree irrespective of the nature of the legal flaw.

We recognize that the conclusion we have reached in this case represents an extension of the estoppel doctrine as expressed in previous opinions on this subject. We now recognize that the statement in Circilo E~, D-13578, June 17, 1971 that "the theory of estoppel . will not be applied where there were no legal proceedings to terminate the prior marriage" could be read in different ways, one of which would dictate an inappropriate result in the instant case. The E~ formulation does not take into account circumstances where, as here, the party to be estopped believed he/she had initiated a divorce action and acted in reliance upon a resultant colorable decree, but later learned that the decree has not been entered by a judicial court following the requisite "legal proceedings." In Eslrosolan, neither the husband nor the wife had made any attempt to obtain a divorce. Unlike Ms. S~, who tried to procure a divorce and thought she had done so, the spouses in Edrosolan simply disregarded their marriage, acting as if it had never existed. Estoppel was inapplicable in E~ due to the absence of either of the two critical criteria for application of estoppel in the divorce context: procurement and/or reliance. Simply put, the E~ had taken absolutely no actions upon which the equitable doctrine could be premised. The language in the E~ opinion should not be read any more broadly than its facts require.

The precedent upon which E~ was based -Ellis H. A~, cited above -cannot be so readily distinguished. Nonetheless, there is a difference between A~ and the instant case. The wage earner in A~ had remarried after his first wife falsely represented that she had obtained a Mexican divorce. He made no effort to ascertain whether she had in fact secured or attempted to secure a decree of divorce in Mexico; he simply took her statement at face value. While he had taken no affirmative steps towards a divorce, ("procurement") however, he nonetheless had remarried based upon his belief that his first wife's purported actions in that regard had, in fact, taken place ("reliance"). We concluded that estoppel did not apply, because no legal proceedings had taken place. Again, the language of the opinion can be read more broadly than the facts of the case require, so we must clarify it. discussed the leading cases of Spellens v. Spellens, cited above, and Bruguiere v. Bruguiere, cited above, indicating that reliance upon a court-issued decree (whether or not it is final and based upon proper jurisdiction) is sufficient to give rise to an estoppel. In Spellens the California Supreme Court upheld a second marriage contracted in reliance upon an interlocutory divorce decree, reasoning that "[a]n interlocutory decree of divorce at least gives color as a judicial determination of divorce .... "(Emphasis added). 317 P.2d at 620. Conversely, in Burguiere, the court distinguished a case (Norton v. Tufts) where estoppel had not been imposed on the basis that in that case there had not been "even the semblance of legal proceedings for a divorce." but rather something akin to a contract for legal separation. The A~ facts were closer to those in Norton -no attempt had been made by either party to secure a judicial decree of divorce. The added factor in A~ -the husband's unquestioning acceptance of his wife's assertion that she had secured a divorce -was insufficient to give rise to estoppel because she' had in fact made no attempt to secure a judicial decree. Had he investigated her claim and been given credible evidence of a divorce by someone with apparent authority in such matters, the result might have been different.

The language in E~ and A~ to the effect that estoppel did not apply because no legal proceedings had been undertaken should therefore be read more narrowly: that no attempt had been made to undertake colorable legal proceedings. This interpretation is consistent with all of the California cases upon which they rely.

The facts of the instant case differ from E~, A~, etc., in a critical respect: Ms. S~ (and Mr. S~) initiated and concluded what they reasonably believed to be judicial proceedings to secure divorce decrees from their respective spouses. The fact that they apparently were deceived by someone in Tijuana, who never undertook proper judicial proceedings on their behalf, is irrelevant for estoppel purposes. They made every effort to secure Mexican divorces, and they relied upon what they believed to be valid divorce decrees in remarrying. Each therefore would be estopped from challenging the validity of his/her respective (bogus) "divorce decree."

In summary, it is our opinion that where an individual has actively tried to procure a divorce, has obtained an invalid, void, or bogus decree, and has relied upon such decree in contracting a subsequent marriage, that individual will be estopped from denying the validity of the divorce.

Under Wyoming law, alleged widow would be estopped by her subsequent marriage and statements to deny the nonfinality of a California interlocutory decree of divorce obtained by her first husband. (L~, Charles -~-RAVIII (N~) to Regional Commissioner, SSA, 2/16/79)

This is in regard to your memorandum of August 10, 1978, posing the question whether Ann E. L~ is the legal widow of Charles F. L~, the wage earner, or whether, under Wyoming law, she is estopped to deny the finality of a California interlocutory judgment of divorce. We have reviewed the claims folder which we return with the following comments.

STATEMENT OF THE FACTS

Charles F. L~ the wage earner, was legally married to Ann H~ on March 19, 1962, in Porterville, California. There was one child from the marriage. Subsequently, they separated. Charles obtained an interlocutory judgment of divorce on September 12, 1963, in Tulare County, California. 1/ Ann received custody of the child, support and maintenance. Your investigations show that no final decree of divorce was ever entered in California.

On December l4, 1964, Ann formally married one L~ in Lompoc, California, from whom she separated at some point in 1974. On April 8, 1975, when Ann applied for surviving child's insurance benefits, she stated that she was "not filing for mother's benefits because I remarried 12/14/64. I am currently married and will advise SSA if this changes." In her statement of claim for benefits, dated September l, 1977, she said that she did not formally divorce L~ because she did not think she was legally married to him--the result of no final judgment ever having been entered in the divorce proceedings concerning her marriage to Charles. However, in her statement of claim for widow's benefits, dated April 18, 1978, she certified that "since he (Charles) had remarried, that I was free to marry, (sic) I didn't know whether or not Charles had filed the final decree. I didn't know the final decree was necessary. I though the interlocutory was good enough."

Charles married Joyce B~ on May 1, 1965, in Las Vegas, Nevada. No copy of the license itself is in the file; however, there is certification of the document's contents. There were three children from this marriage. Charles and Joyce separated sometime in 1968, but your investigation showed no evidence of any divorce or formal separation proceedings.

On August 12, 1969, Charles married Susan T~ in Nevada. They were divorced on November 10, 1971, in Idaho.

On November 24, 1972, Charles married Rebecca B~ in Nevada. There was one child from this marriage.

Charles died on February 22, 1975, domiciled in Wyoming. Rebecca filed applications for child insurance benefits and mother's insurance benefits on February 26, 1975, and she was determined to be the eligible widow pursuant to section 216 (h) (1) (A) of the Social Security Act, 2/ hereinafter referred to as the Act). Joyce filed an application for benefits on May 5, 1976, and was declared to be the widow, thus eliminating Rebecca. On September l, 1977, Ann filed an application for mother's benefits She was determined to be the eligible widow on the ground that her marriage to Charles had not been terminated by the interlocutory divorce decree, thus sufficiently rebutting the validity of Charles' subsequent marriages You have asked us for an opinion as to whether under Wyoming law, Ann would be estopped to deny the finality of the California interlocutory divorce decree in light of her subsequent actions and beliefs.

DISCUSSION

Section 216 (h) (1) (A) states in pertinent part that: (a)n applicant is the . . . widow . . . of a fully or currently insured individual for purposes of this title . . . if such insured individual, is dead, the courts of the State in which he was domiciled at the time of death, . . . would find that such applicant and such insured individual were validly married . . . at the time he died. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant ,shall, nevertheless, be deemed to be the widow . . . of such insured individual if such applicant would, under the laws' applied by such courts in determining .the devolution of intestate personal property, have the same status with respect to the taking of such, property as a.... widow .... of such individual.

(Emphasis added). See also, 20 C.F.R. § 404.1101. Under this section then, the law of Wyoming (Charles's domicile at the time of his death) is initially determinative of the validity or nonvalidity of Ann's marriage to the WE. See! e.g., Mort v. Secretary of HEW, 407 F .2d 59 (3rd Cir. 1969) McGuire v. Califano, 440 F. Supp. 1031 (D. Neb. 1977). Wyoming law recognizes the validity of a foreign marriage if it was, or is, valid in the State in which it was performed. Wyo. Stat. § 20-1-111 (1977), see also.. Hoagland v. Hoagland, 27 Wyo. 178, VIII (B~) to PC:KC 3/27/64. Therefore, We must look at California law to establish whether Ann's marriage to Charles is still valid, or alternatively whether Ann is married to her second husband. 3/ Once Ann's status is determined under California law, we must go back to the Wyoming law of estoppel to determine if Ann is Charles "widow".

When Ann and Charles obtained their interlocutory divorce decree in 1963, the relevant California law, section 132 of the Civil Code, read:

When an interlocutory judgment has been entered pursuant to Sec. 131 and one year has expired from the date of service of copy of summons and complaint upon the defendant's spouse, the court on motion of either party, or upon its own motion, may enter a final judgment granting the divorce, and such final judgment shall restore them to the status of single persons, and permit either to marry after entry thereof; and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial is made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion is granted or judgment reversed. The death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter final judgment herein before provided; but such entries shall not validate any marriage contracted by either party before entry of such final judgment but will constitute any defense of any criminal prosecution made against either.

(Emphasis supplied). 4/ Under the law, then, it seems at first glance that neither Charles' or Ann's marriages subsequent to the entry of the interlocutory decree would be valid. Seer. e.g.. Sullivan v. Sullivan, 219 Cal. 734, 28 P. 2d 914 (1934). This" is so, because, while "the interlocutory does not forbid a remarriage, it simply refrains from dissolving the old one." Hirschfeld v. Hirschfeld, 165 Cal. App. 2d 474 332 P. 2d 397, 298 -(i959).

However, it seems clear that even though the California courts would not validate Ann's subsequent marriage, they would hold and that she is estopped to question the validity of either her "divorce" from Charles or her subsequent marriage. Spellens v. Spellens ,305 P .2d 628 (Cal.App. 1956), rev'd, 49 Cal.2d 210, 317 P.2d 613 (1957); Smith v. Smith, 157 Cal. App.2d 46, 320 P.2d 100 (1958); GC Opinion, In re ..Ellis H. Ackerman, RA IX (Manual) to RRep, D-3730, 4/9/58.

In Spellens the California Supreme Court faced a plaintiff's action for declaration of legal marriage. The defendant claimed that his marriage to plaintiff was invalid because she had married him in Mexico while she had only a California interlocutory divorce decree from her prior husband. The court held that the defendant was estopped to deny the validity of his marriage or the interlocutory decree, when he had helped plaintiff procure the decree and married plaintiff four days later, representing that she was free to marry him. The court cited Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d I (1950), for the proposition that:

The validity of a divorce decree cannot be contested by a party who has procured the decree or a party who has remarried in reliance thereon, or by one who has aided another to procure the decree so that the latter will be free to marry.

49 Cal. 2d at ....... , 317 P.2d at 617. (Emphasis added).

The Spellens court clarified language in Reddiker which presupposed an entry of a final decree 5/. The court held that:

An interlocutory decree of divorce at least gives color as a judicial determination of divorce especially when we consider that the final decree ordinarily follows at the end of the year as a matter of course.

49 Cal. 2d at ......,317 P.2d at 620. (Footnote omitted.) The court then pointed out that unlike other interlocutory judgments, the statutory interlocutory decree of divorce is a final, appealable judgment, which adjudicates all matters except the final ministerial severing of a marital relationship of the parties. "After the time to appeal or move to vacate the decree has expired, the trial court is wholly without jurisdiction to alter or set aside the interlocutory judgment." 6/ Id. n.3.

In filing her application, Ann admitted that she remarried in reliance upon the interlocutory decree. (Under California law at that time, Civil Code § 133, she could have obtained the final decree any time after a year had passed after the entry of the interlocutory decree.) Thus, by her conduct, under the language of Rediker and Spellens, she is estopped to contest the validity of her second marriage or the lack of finality of her divorce from the wage earner.

Under California law, the public policy of that State requires the recognition of Ann's marriage to her second husband rather than her "dubious attempt to resurrect" her original marriage to the wage earner. Spellens, 317 P.2d at 618. "The theory is that the marriage (Ann to second husband) is not made valid by reason of estoppel but the estopped person (Ann) may not take a position that the divorce (Ann to WE) or later marriage was invalid.", Id., or not complete.

In Wyoming, Ann would have to overcome the presumption that the wage earner and Rebecca were validly married. Under Wyoming law,

Where it appears that the parties to a prior marriage were living at the time of a subsequent marriage of one of the parties to a third person, it will be presumed that the disability of the prior marriage had been removed by divorce before the time of the second marriage in the absence of any countervailing evidence or corroborating circumstances.

In re St. Clair's Estate, 46 Wyo. 446, 28 P .2d 894, 896-897 (1934).

It seems most reasonable to conclude that under Wyoming law, Ann would be estopped to deny the finality of her divorce from the wage earner even though she can show that no final divorce decree had entered. First, the fact that Ann and the wage earner had obtained only an interlocutory decree is probably irrelevant. In Salmeri v. Salmeri supra the court observed that:

It has also been said that although a State may not be constitutionally bound to enforce a sister State modifiable judgment, neither is it bound not to enforce it. Worthlely v. Worthley, 44 Cal. 2d 465, 283 P.2n 19,22 (1955)

554 P .2d at 1250. Second, the Wyoming case law of equitable or judicial estoppel would seem to preclude Ann from claiming that her subsequent marriage was invalid. Judicial estoppel is "a doctrine which estops a party to play fast and loose with the courts . . an expression of the maxim that one cannot blow hot and cold in the same breath." Allen v. Allen, 550 P.2d 1137, ll42 (Wyo. 1976). Ann's statement concerning her subsequent marriage would appear to fall within the statement by the Allen court that "Defendant's statements in the previous action are the very highest order of evidence against him and are entitled to judicial sanctity, he cannot play hanky-panky with the courts of the State and thus interfere with the integrity of the judicial system." Id.

Third, the general conflict of laws principles that Wyoming courts would undoubted look to state that "A spouse who has accepted benefits under the divorce will usually be held estopped to attack it." Restatement 2d, Conflicts § 74 Compare GC Opinion, In re Durham supra, (Wyoming law would hold first wife not estopped to assert invalidity of Mexican divorce because she never accepted or retained any fruits of the divorce.)

Accordingly, it appears that Wyoming courts would hold Ann estopped to deny the finality of the California interlocutory judgment of divorce from the wage earner.

1_/Both parties were domiciled in California; Ann was served but did not appear, either personally or by counsel.

2_/42 U.S.C. §416(h)(1)(A).

3_/ Wyoming gives full faith and credit to valid divorce decrees from other States. See, Salmeri v. Salmeri, 554 P .2d 1244 (Wyo. 1977); See also, Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L.Ed.2d 82 (1944).

4_/ Cal. Civ. Code Section 4514 (West 1970).

5_/35 Cal. 2d at 808, 221 P .2d at 8.

6_/We note that under California law, even now, any, person may move for the entry of a final decree of divorce in Lucre v. Luce, nunc pro tunc to the earliest date that either Ann or the WE could have obtained one, i.e.. September 12, 1964. See Hurst v. Hurst, 227 Cal. App. 2d 859, 39 Cal. Rptr., 19 ALF 2d 635, 643 (1964) and cases cited therein.