TN 1 (07-20)

PR 03430.105 The Dominican Republic

A. PR 20-065 The validity of a divorce - the Dominican Republic

DATE: June 16, 2020

1. SYLLABUS

Whether a Dominican Republic divorce decree that beneficiary, XX, number holder (NH), submitted to the agency, validly terminated his marriage with XX (Claimant).

Whether the agency properly terminated auxiliary spousal benefits to Claimant and assessed an overpayment.

2. OPINION

No. The Dominican Republic divorce did not terminate the marriage. Therefore, the agency improperly terminated Claimant’s auxiliary spousal benefits and assessed an overpayment.

3. BACKGROUND

On January xx, 20xx, Claimant applied for auxiliary spousal benefits on NH’s earnings record. She also applied for child’s insurance benefits on NH’s earnings on behalf of her three children with NH.[1] Claimant indicated that a clergyman or public official in the Dominican Republic married her and NH on July x, 19xx.

[1]On July xx, 20xx, NH applied for disability insurance benefits (DIB), alleging disability beginning on July x, 20xx. In his application, he indicated that he married Claimant on July x, 19xx, in the Dominican Republic. The agency granted NH’s application on January x, 20xx. On May xx, 20xx, the NH’s sister, applied to be NH’s representative payee. xx indicated that NH resided with her in Miami, Florida, and that NH was “no longer with his wife, [Claimant].”

On January xx, 20xx, NH married xx in Santo Domingo, Dominican Republic.[2] Ms. xx applied for auxiliary spousal benefits on the NH’s earnings record on October xx 20xx. That same day, Ms. xx additionally applied for child’s insurance benefits on behalf of her two children based on the NH’s earnings record. In connection with this application, NH submitted evidence of a Dominican Republic divorce decree purportedly showing that he and Claimant divorced in 20xx. The Santo Domingo, Dominican Republic Civil Registry issued the decree on October xx, 20xx.[3] According to the decree, NH became divorced from Claimant as of August xx, 20xx. The Dominican Republic Civil Registry recorded the divorce decree on November x, 20xx.

[2]The agency translated the marriage certificate from Spanish on November x, 20xx.

[3] The agency translated the divorce decree from Spanish on April x, 20xx.

After Ms. xx applied for benefits, the agency retroactively terminated Claimant’s auxiliary spousal benefits for the period from January 20xx through December 20xx and assessed an overpayment against her. Claimant disputes that she was divorced from NH and alleges she was not aware of the alleged divorce until Ms. xx applied for spousal benefits.

NH and Claimant were born in the Dominican Republic. They became citizens of the United States before NH applied for benefits. From at least the time of NH’s 20xx DIB application through the present, NH and Claimant have resided in Miami, Florida. Claimant submitted tax returns that indicate she has not established residency outside the United States since at least 20xx, when she applied for spousal benefits. Additionally, since he filed his DIB application, NH did not report to the agency that he left the country or established residency elsewhere.[4]

[4] Although he did not inform the agency that he left the country, Ms. xx submitted a marriage certificate in connection with her application for auxiliary benefits that indicates NH went to the Dominican Republic in 20xx to remarry.

4. DISSCUSSION

A. Federal Law

A claimant is entitled to spousal benefits under Title II of the Social Security Act (Act) if, among other things, she is the wife or deemed wife of an insured individual who is entitled to disability benefits. 42 U.S.C. §§ 402(b), 416(a)(1), (b); see 20 C.F.R. § 404.330 (2020).[5] For a claimant to establish she is a wife, the claimant bears the burden of proving she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See20 C.F.R § 404.330(a).

Claimant’s eligibility for auxiliary spousal benefits for the period from 20xx through 20xx hinges on the validity of the foreign divorce decree NH provided to the agency, as discussed above. The agency presumes a divorce is valid if granted by the court in whose jurisdiction at least one of the parties was domiciled at the time of the divorce. Program Operations Manual System (POMS) GN 00305.170A.1. Claimant, who is contesting the legitimacy of the divorce decree, has provided evidence that she is domiciled in Miami, Florida. Moreover, NH has not provided any evidence showing that he was domiciled in the Dominican Republic at the time of the divorce. If a court in a foreign country grants a divorce and at least one of the parties was not domiciled there as required, SSA must question the validity of that foreign divorce. POMS GN 00305.170A.3b. In addition, when “another claimant has filed as the spouse of the worker by a later marriage,” the agency requires further development to resolve any question about the validity of the divorce. POMS GN 00305.170B.1a. Thus, when another claimant, Ms. xx filed as a spouse of NH by a later marriage, the POMS require further development.[6] POMS GN 00305.170B.1a. The relevant law in determining whether the divorce between NH and Claimant is valid is the law of the state where NH was domiciled when Claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.005B.

[5]All subsequent references to 20 C.F.R. are to the 2020 edition.

[6] A collateral issue may arise regarding whether Ms. xx might be eligible for spousal benefits as a spouse or a deemed spouse. If a claimant cannot establish her status as an insured’s wife under state law per 42 U.S.C. § 416(h)(1)(A), she may be eligible for benefits based on a deemed valid marriage. 42 U.S.C. § 416(h)(1)(B); see 20 C.F.R. § 404.346; see also POMS GN 00305.005A (in determining whether a claimant qualifies as a spouse under the Act, consider all of the following types of marriages: valid ceremonial or common-law marriage; invalid marriage that permits a spouse to inherit under state intestate personal property, e.g. putative; custom marriage; or deemed marriage). For a claimant to establish she is a deemed wife, she must prove she went through a marriage ceremony in good faith with the insured that would have resulted in a valid marriage except for a legal impediment. See42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346, 404.704, 404.727. A legal impediment includes one that results because a previous marriage had not ended at the time of the alleged ceremonial marriage. See42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346. However, the agency must further develop the record to determine whether Ms. xx went through the 20xx marriage ceremony with NH in good faith. See20 C.F.R. § 404.346; see also42 U.S.C. § 416(h)(1)(B).

B. Florida Law

NH and Claimant have been domiciled in the state of Florida since at least 20xx, when Claimant first applied for spousal benefits; thus, Florida law applies. See 42 U.S.C. § 416(h)(1)(A)(i). “Once a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid.” Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987) (citing Grace v. Grace, 162 So. 2d 314, 317 (Fla. Dist. Ct. App. 1964)). Otherwise, it is well established that Florida has a presumption of validity that attaches to one’s last marriage, and this presumption is referred to as “one of the strongest known to the law.” King v. Keller, 117 So. 2d 726, 728 (Fla. 1960); see also POMS PR 05115.011. To overcome the presumption of the validity of the last marriage, (NH’s marriage to Ms. xx), there must be some evidence showing that the previous marriage was not dissolved by death or divorce.

When a foreign country enters a divorce decree, Florida courts have discretion in recognizing and giving it effect, as “a matter of ‘comity.’” Popper v. Popper, 595 So. 2d 100, 102-03 (Fla. Dist. Ct. App. 1992) (citations omitted). Florida’s “well-established principles of comity suggest that . . . [Florida courts] should generally recognize the decisions of a foreign court.” Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013, 1016 (Fla. Dist. Ct. App. 2008) (emphasis supplied). To apply comity, the record must show the foreign judgment had the elements supporting the divorce as if obtained in the state of Florida. Thus, “the grounds relied upon for divorce must be sufficient under Florida law[—]the petitioning party must satisfy the jurisdictional requirements relating to residency or domicile, and basic due process and notice requirements must be met.” Popper, 595 So. 2d at 103; see alsoNahar v. Nahar, 656 So. 2d 225, 229 (Fla. Dist. Ct. App. 1995). The Florida statute provides:

Before enforcing a judgment or order of a court of a foreign country, a court must review the judgment or order to ensure that it complies with the rule of comity. A judgment or order of a court of a foreign country is not entitled to comity if the parties were not given adequate notice and the opportunity to be heard, the foreign court did not have jurisdiction, or the judgment or order of the foreign court offends the public policy of this state.

Fla. Stat. Ann. § 61.0401(3) (West 2014). “Florida courts will not recognize a foreign nation’s divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered.” In re Estate of Schorr, 409 So. 2d 487, 489 (Fla. Dist. Ct. App. 1981).

C. Dominican Republic Law[7]

[7] We based our Dominican Republic law discussion of on information received from the Law Library of Congress. Gustavo Guerra, Report for the U.S. Social Security Administration, Dominican Republic: Validity of Divorce Decree in the Dominican Republic, LL File No. 2020-019066 (June 2020) (Law Library of Congress Report).

NH duly registered the divorce decree in the Dominican Civil Registry. Nullifying civil status documents, such as the divorce decree obtained by NH, and or taking any action that may modify the civil status of individuals is strictly reserved to Dominican courts. See Jose Miguel Vazquez Garcia, Manual sobre las actas y acciones del estado civil303 (2007); see also¿Cuál es el procedimiento de las Sentencias de nulidad de Actos del Estado Civil?, Junta Central Electoral, https://perma.cc/3VB3-HZX4 (website of the Dominican Civil Registry, last visited June 10, 2020). Thus, the validity of this divorce decree is a fact-specific, case-by-case question for the Dominican court itself.

Dominican divorce law requires that a divorce for cause be filed in the court of the judicial district where either party resides, with a preference to file in the district where the defendant to the divorce proceeding resides. Ley 1306-Bis, art. 3, Gaceta Oficial No. 5034, June 12, 1937, as amended, https://perma.cc/S7TV-CXEW (last visited June 10, 2020). The law also requires the plaintiff filing a divorce for cause, here NH, to give notice to the defendant. Id. at art. 4.

In reviewing NH’s divorce decree, the Senior Foreign Law Specialist from the Library of Congress determined that the divorce was “for cause.” Law Library of Congress Report, at 1.

D. Analysis

While NH presented SSA with a divorce decree from the Dominican Republic in 20xx, the relevant law in determining whether the divorce between the NH and Claimant is valid is the law of the state where NH was domiciled when Claimant applied for benefits—Florida law. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.005B.

As a matter of comity, a Florida court would not recognize the Dominican Republic divorce decree as valid in this matter because the details surrounding the foreign divorce decree are insufficient to establish a valid divorce in the state of Florida. SeePopper, 595 So. 2d at 103. First, the decree does not meet Florida’s jurisdictional requirements—neither NH nor Claimant were domiciled in the Dominican Republic in 20xx for a period of six months, when the divorce was allegedly decreed and recorded. See Fla. Stat. Ann. § 61.0401(3); In re Estate of Schorr, 409 So. 2d at 489 (stating Florida will not recognize a foreign divorce decree unless at least one party was domiciled in the foreign country at the time the foreign country issued the divorce). In fact, a Florida court has ruled in a case with facts similar to the ones presented here. Specifically, the Florida court declined to recognize the validity of a Dominican Republic divorce decree because plaintiff was not a resident of the Dominican Republic for a period of six months before applying for the divorce there. Lopes v. Lopes, 852 So. 2d 402, 406 (Fla. Dist. Ct. App. 2003) (dicta in dissent; dissenting on other grounds); Fla. Stat. Ann. § 61.021 (West 2020).

Second, the NH’s notice to Claimant was insufficient for a Florida court to find the divorce valid. SeePopper, 595 So. 2d at 103 (holding that basic due process and notice requirements must be met); see also Fla. Stat. Ann. § 61.0401(3) (judgment of a foreign court is not entitled to comity if the parties were not given adequate notice). Claimant contends that she was unaware of the divorce before 20xx, when Ms. xx applied for spousal benefits and NH produced the Dominican Republic divorce decree. This contention indicates NH did not give adequate notice to Claimant before he sought a divorce “for cause.” The fact that the decree itself indicates that the divorce occurred in August of 20xx further supports Claimant’s contention. When Claimant applied for spousal benefits in January of 20xx, after the date of the alleged divorce, she indicated that she and the NH had been married since 19xx.

Third, while not as dispositive, it appears that the divorce decree would be invalid under the law of the Dominican Republic. A Dominican court would have to analyze the specifics of the divorce decree in question to make a definitive finding as to its validity, a finding that remains a fact-specific question for the courts of that country. See Jose Miguel Vazquez Garcia, Manual sobre las actas y acciones del estado civil303 (2007); see also¿Cuál es el procedimiento de las Sentencias de nulidad de Actos del Estado Civil?, Junta Central Electoral, https://perma.cc/3VB3-HZX4 (website of the Dominican Civil Registry, last visited June 10, 2020). As discussed above, a divorce “for cause” in the Dominican Republic requires the plaintiff file the action in the judicial district where either spouse resides, and the plaintiff must give adequate notice to the defendant of the divorce proceedings. Ley 1306-Bis, arts. 3 & 4, Gaceta Oficial No. 5034, June 12, 1937, as amended, https://perma.cc/S7TV-CXEW (last visited June 10, 2020). Neither party resided in the Dominican Republic at the time of the 20xx divorce, and Claimant maintains NH never notified her of the divorce.

5. CONCLUSION

The Dominican Republic divorce did not terminate NH and Claimant’s marriage. Therefore, the agency improperly terminated Claimant’s auxiliary spousal benefits and incorrectly determined that it overpaid her.