In your memorandum of October 24, 1979, you asked whether the Florida courts may recognize
an otherwise invalid Mexican divorce on the basis of estoppel and further you solicited
comments on the "Memorandum of Law" by the attorney of the second wife, Marguerite.
Since the "Memorandum of Law" discussed New York and Connecticut law, this office
will defer any comment to the Regional Attorney responsible for those states. This
opinion will be confined to a discussion of the competing public policy concerns the
Florida courts would face under the facts of this case including the circumstances
in which the doctrines of 1aches and estoppel may be applied by the Florida courts.
The wage earner, John D~ married his first wife, Mary, in Brooklyn, New York on October
11, 1936. Four children were born of this marriage. While he and Mary were residing
in the state of New York, the wage earner procured a Mexican divorce on September
19, 1968. The wage earner was physically present in Mexico prior to initiating his
divorce action for a period of three days, but Mary did not appear in Mexico personally
or through counsel. The Mexican Judgment of Divorce stated that the ground for divorce
was "incompatibility of temperment" and further stated that Mary was served by publication
in the official newspaper of the Mexican state. The wage earner alleges notice of
the divorce action appeared in the New York Times and further alleges his lawyer notified
Mary by letter of wage earner's intent to divorce her. Mary, however, denies any knowledge
of the divorce. Mary did not remarry.
The wage earner subsequently married Marguerite in the state of Connecticut on December
8, 1968. The file does not reflect the nature or extent of the wage earner's ties
to the state of Connecticut. Marguerite was apparently aware of the Mexican divorce
prior to her marriage to the wage earner and believed it removed any impediment to
marriage between her and the wage earner. While residing in Long Beach, New York,
a child was born of this marriage in March of 1971.
As residents of New York, the wage earner applied for retirement benefits on May 24,
1976, and Marguerite applied for wife's insurance benefits in June 1976. Marguerite
was "deemed" to be the wife of the wage earner and was awarded benefits on that basis.
In November 1978, wage earner and Marguerite moved to Florida and apparently became
domiciled there. The first wife, Mary, filed her application for wife's benefits on
the earnings record of the wage earner on January 3, 1979, as a resident of New York.
Mary alleges that she was aware the wage earner was living with another woman and
that the wage earner had a child by this woman. Further, Mary alleges that she was
in contact with the wage earner, that she and wage earner went out together even after
this child was born and that she and wage earner mortgaged jointly owned real estate
to generate $26,000 for a son born of the marriage between John and Mary. However,
Mary denies any knowledge of a marriage between wage earner and Marguerite. Mary further
states she was not aware of the existence of a divorce between she and wage earner.
Assuming the move to Florida by the wage earner and Marguerite in November of 1978
constituted a change of domicile from New York to Florida, the law of Florida will
be determinative of the marital status, if any, existing between the wage earner and
his first wife, Mary. Section 216(h)(A) of the Social Security Act. Florida courts
follow the general rule that the validity of a marriage is determined by the law of
the state where the contract of marriage exists. Young v. Garcia, 172 So.2d 243 (1965); Goldman v. Ditrich, 179 S. 715 (1938). Therefore, Florida courts would likely look to the law of both
New York and Connecticut in its analysis of the wage earner's marital status.
However, since Florida courts would not apply the laws of these sister states if violative
of a paramount public policy of Florida, this opinion will focus on the competing
public policy considerations which would face the Florida courts in this matter. Hebron v Passailaigue, 110 So.539 (1926); Beckwith v. Bailey, 161 So.576 (1925).
The Florida courts refuse to recognize divorces procured in Mexico under circumstances
whereby neither spouse was domiciled in Mexico. Kittel v. Kittel, 194 So.2d 640 (1967). In Kittel, supra, the District Court of Appeals of Florida was faced with a factual situation
similar to this D~ matter. Although husband and wife were residents of Florida, the
husband went to Mexico to file his divorce action, remained there a few days in a
transient hotel and secured a divorce on the ground of incompatibility of temperment
which was not a ground for divorce in Florida. The wife was personally served with
due notice of the Mexican action but did not appear. The wife instituted an action
in Florida to enjoin her husband from prosecuting the Mexican divorce action. In affirming
the lower court's ruling that the Mexican divorce was not valid in Florida, the Kittel court strongly denounced the husband's efforts as follows:
"To hold the alleged divorce decree is valid as was obtained in Mexico by Mr. Kittel would permit any party desiring to shed himself of a wife to simply go to a state
or country several thousand miles away, remain there a few days and secure a divorce
on grounds not. even recognized in this state. Should this be permitted, it would
violate all principles of morality and justice .... "
Since neither wage earner nor Mary were domiciled in Mexico, the Mexican court lacked
jurisdiction to grant a divorce to the wage earner. However, the subsequent marriage
of the wage earner, Mary's awareness of Marguerite and the child born of the union
of wage earner and Marguerite, and the ten year delay in contesting the relationship
between wage earner and Marguerite raises the issue of whether the doctrine of laches
and estoppel would be applicable under Florida law. In Lanigan v. Lanigan, 78 So.2d 92 (1955), the husband initiated a divorce action in Rhode Island but his
wife successfully counterclaimed for a divorce from bed and board (procured a separation
and support order). The husband then went to Nevada, initiated a divorce action and
was granted a divorce. Subsequently, the husband held himself out as single or at
least as divorced from his first wife, married twice thereafter and engaged in commercial
transactions with persons who relied on the divorce decree. Sixteen years after the
Nevada judgment, the first wife asked the Florida court to declare the Nevada divorce
decree invalid and to enforce a Rhode Island judgment for alimony arrearages. Recognizing
that the Nevada court may have lacked jurisdiction to grant this divorce since the
husband was domiciled in Florida at the time the Nevada action was initiated and further
recognizing that the actions of the husband in attempting to get a divorce under such
circumstances were reprehensible, the court nevertheless focused on the sixteen year
lapse between the husband's Nevada divorce and his first wife's effort to challenge
its validity. Concerned about the reliance of third parties on the Nevada decree,
to include subsequent wives, the court found the sixteen year delay of the wife sufficient
to bar her action in the absence of a convincing explanation which would excuse her
delay in contesting the Nevada divorce.
Consequently, Florida courts will not recognize a Mexican divorce if neither party
to the action was domiciled in Mexico. However, the Florida courts may invoke the
doctrines of laches and estoppel to deny the first wife the opportunity to contest
the validity of a Mexican divorce apparently invalid on jurisdictional grounds if
the first wife is aware her husband is representing to the world a single or divorced
status if third persons are relying upon such representations, and if she unreasonably
delays in contesting the validity of his represented marital status.
Therefore, it is the opinion of this office that you would be warranted in determining
that Marguerite would be entitled to wife's benefits if you find the following :
(1) that wage earner was representing to the world by words and/or actions that he
was single or remarried and third persons relied on such representations; and
(2) that Mary was aware of the wage earner's representations but unreasonably delayed
in challenging the wage earner's status.
Should you determine that the facts of this case are insufficient to enable you to
make a determination as to whether or not the Florida courts would invoke the doctrines
of laches and estoppel in accordance with the criteria discussed above, we suggest
in the absence of clear precedent that you refer this matter to the Regional Attorney
for Region II for his opinion as to the applicability of the law of New York to the
facts of this case.