Basic (05-16)

PR 03430.238 Mexican Divorce

A. PR 16-066 Validity of Divorce – Sufficiency of Documentation to Establish That the Purported Mexican Divorce Obtained By Number Holder J~ Is Valid—REPLY

Date: January 14, 2016

1. Syllabus

The number holder (NH), J~ married A~ in 1956. In 2000, he began receiving retirement benefits on his account. The NH’s spouse, A~ filed for spouse’s benefits in May 2000 and currently receives such benefits. Then, evidence is provided that the NH married P~ in September 2012 in New York state. P~ filed for spouse’s benefits on the NH’s record in August 2014 and submitted purported proof of a Mexican divorce between the NH and A~ dated June 2012. Under the 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 P~ applied for benefits. The NH was domiciled in New York, therefore, the law in the state of New York governs the validity of the divorce.

New York will recognize the divorce if both parties consent to the foreign jurisdiction and one party physically appears, establishing contact. In this case, the NH established “brief contact” by appearing before the Mexican court but New York law also requires that each party consent to the jurisdiction. 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. Since there is no evidence to support A~ consented to the foreign court’s jurisdiction, the NH’s brief contact with the Mexican court is not sufficient and the divorce is not valid under New York State law. Nonetheless, regardless of state law, the Act permits the Commissioner to find that a marriage is valid if it is satisfied that P~ entered the marriage in good faith with the NH resulting in a purported marriage between them, but for a legal impediment not known to P~ at the time of the ceremony, would have been a valid marriage. For the reasons stated, the Mexican divorce is invalid and A~’s marriage to J~ remains valid. Also based on the evidence provided, it is determined to be inconclusive whether P~ can be considered a deemed spouse for purposes of spouse’s benefits and further development may be needed to determine if P~ meets the definition of a deemed spouse.

2. Opinion

QUESTION PRESENTED

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.

 

OPINION

 

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.

BACKGROUND

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.[1] 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.

ANALYSIS

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.

Deemed Marriage

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.

CONCLUSION

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.

 


Footnotes:

[1]

. P~ previously was married to B~ on August XX, 1969, and they were divorced in New York in 1979. P~ continues to receive divorced spouse’s benefits since November 2000.


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PR 03430.238 - Mexican Divorce - 05/17/2016
Batch run: 05/18/2016
Rev:05/17/2016