You asked whether the Mexican divorce obtained by J~ (the NH), to dissolve his marriage
to A~ (A~) is valid and, as a result, whether his subsequent marriage to P~ (P~) entitled
P~ to spousal benefits on the NH’s record.
Based upon the evidence you provided, the Mexican divorce decree is invalid, and the
NH and A~ remain married. As a result, the NH’s marriage to P~ is void, rendering
her not entitled to spousal benefits on the NH’s record. However, P~ may meet the
requirements for benefits as a deemed spouse and you may wish to further develop the
record on this issue.
The NH married A~ in 1956. In 2000, he began receiving Retirement benefits on his
account. In May 2000, A~ filed for Auxiliary Spouse benefits, and currently receives
such benefits on the NH’s account.
The evidence provided indicates that the NH married P~ on September XX, 2012 in New
York State. In August 2014, P~ filed for Auxiliary Spouse benefits on the NH’s record. With her
request for benefits, P~ submitted purported proof of a Mexican divorce between the
NH and A~ dated June XX, 2012 (translation in file). The decree also indicates that
the NH was present in Mexico and appeared before the court, represented, in the divorce
action. The decree also indicates that A~ was not present at the divorce proceeding
and states that although she was notified of the divorce proceeding pursuant to Mexican
law she failed to respond within the granted legal term.
Under the Social Security Act (Act), the relevant law in determining whether the divorce
between the NH and A~ is valid is the law of the state in which the NH was domiciled
when the claimant (P~) applied for benefits. See Section 216(h)(1)(A) of the Act; 42 U.S.C. § 416(h) (1) (A); POMS GN 00305.170A.2. As the NH was domiciled in the State of New York when P~ applied for benefits,
New York law governs as to the validity of the divorce.
New York State Law
New York State will recognize a foreign divorce (comity) provided that the “jurisdiction
of the foreign tribunal [was] predicated upon the consent of both parties and residency, rather than domicile, [was] established by statutory
‘brief contact’ through the appearance of one of the parties.” Kushnick v. Kushnick, 763 N.Y.S.2d 889, 892 (N.Y. Sup. Ct. 2003) (citations omitted) (emphasis added);
see also PR 06-323 (explaining that comity will be afforded where there was consent of both
parties and brief contact by at least one party). Thus, if both parties consent to
the foreign jurisdiction, and one party physically appears, establishing brief contact,
New York will recognize the divorce. Id.
Here, although the NH established “brief contact” by appearing before the Mexican
court, New York State law also requires that each party consent to the jurisdiction.
Kushnick, 763 N.Y.S.2d at 892. The NH claims, and the divorce decree states, that A~ was provided
notice of the proceedings as prescribed by Mexican law, and did not contest the divorce,
but there is no evidence that she consented to the divorce. With no showing that A~
consented to the foreign court’s jurisdiction, the NH’s brief contact with the Mexican
court is not sufficient. New York courts would not afford comity in this case, and
the divorce is not valid under New York State law.
Under New York law, once a ceremonial marriage has been performed, there is a strong
presumption in favor of holding the latest ceremonial marriage valid. See Grabois v. Jones, 89 F.3d 997,100 (2d Cir. 1996). However, the presumption is not a rule of law, but
a rule of fact. Grabois v. Jones, No. 94 Civ. 2070, 1998 U.S. Dist. LEXIS 4567, *20 (S.D.N.Y. Apr. 3, 1998). Because
in New York “a marriage is void if contracted by a person whose husband or wife by
a former marriage is living and the prior marriage has not been dissolved legally,”
Gonzalez v. Gonzalez, 34 Misc.2d 193, 194 (N.Y. Sup. Ct. 1962), “if the facts clearly indicate that the
first marriage was not resolved, then the presumption will be overcome.” Grabois, 1998, U.S. Dist. LEXIS 4567, *20. Thus, because the first marriage has not ended,
the NH’s marriage to P~ is void.
Nonetheless, regardless of state law, the Act permits the Commissioner to find that
a marriage is valid if she is satisfied that an applicant entered the marriage in
good faith with the insured individual resulting in a purported marriage between them
which, but for a legal impediment not known to the applicant at the time of the ceremony,
would have been a valid marriage. Section 216(h)(1)(B)(i) of the Act, 42 U.S.C. §
416(h)(1)(B)(i), 20 C.F.R. § 404.346(a). A legal impediment includes an impediment
which results because a previous marriage had not ended at the time of the ceremony.
20 C.F.R. § 404.346(a). Here, there was a legal impediment to P~’s marriage to the
NH. P~ had knowledge of the prior marriage. However, it is not clear whether she had
knowledge that the Mexican divorce would not be recognized as valid. You may wish
to further develop the record as to whether P~ meets the definition of a deemed spouse.
For the reasons stated above, we conclude that that the divorce was invalid, that
A~’s marriage to NH remains valid, and that based upon the evidence provided, it is
inconclusive whether P~ can be considered a deemed spouse.