You have asked for advice on whether a valid marriage still exists between the claimant,
T~, and the number holder, A~ ("NH"); whether the New York Family Court had jurisdiction
to declare their subsequent Cuban divorce void; and thus whether T~ is the widow of
A~. As we understand the facts of this case, T~ contends that she remained the legal
wife of A~ until he died because the Cuban divorce was fraudulent. Based on the factual
record presented to us, T~ has not provided clear and convincing evidence that the
Cuban divorce is invalid.
T~, formerly T~, had two children with A~ in Cuba: A~ and R~ (Ex. 5). Both T~ and
NH were natives of Cuba, and according to T~ they had an agreement to get married
so they could bring their children to the United States. T~ came to Brooklyn some
time in 1956 and Amado came shortly after. T~ and NH were married in New York, N.Y.
on September XX, 19XX in a ceremony solemnized by clergyman, Reverend Antonio G~ (Ex.
7). T~ and NH listed Brooklyn as the place of their residence (Ex. 7).
T~ and NH separated some time around 1960, and NH returned to Cuba while T~ remained
in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May XX, 1960
(Ex. 1). The decree identifies T~ , represented by "Solicitor Francisco Rodriguez,"
as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA")
explains that T~ was living in Brooklyn at the time of the divorce but sent power
of attorney to Cuba (Ex. 3). L~, NH's third wife, similarly told the SSA that T~ signed
away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in
T~ 's request for hearing T~ maintained that she is the legal wife of NH (Ex. 9).
T~ denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent
and denied any knowledge of the proceeding and signing her name to any consent or
acknowledgment of the divorce action (Ex. 5).
On or about December XX, XXX, NH married I~, formerly I~, in Cuba (Ex. 4). They remained
married for approximately twenty one years until NH brought a divorce action in Elizabeth,
N.J. and the Honorable John P. W~ ordered that the marriage be dissolved on September
XX, XXXX (Ex. 4). I~ remarried on March XX, XXXX to J~ and is still legally married
to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's
record (Ex. 12).
The record indicates that in 1963, subsequent to NH's marriage to Isabel, T~ instituted
a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8).
In this proceeding the Family Court of the State of New York issued an Order of Support,
finding NH legally chargeable with the support of "Wife, T~ R~." The Order further
directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to T~, it was
not until she filed for this Order of Support that she became aware of the fraudulent
divorce proceedings (Ex. 5).
The State of New Jersey Certificate of Marriage contained in the file demonstrates
that NH was then married a third time on December 7, 1984 to L~ (now L~) in Elizabeth,
N.J. (Ex. 10). NH died in Miami, Florida on April XX, XXXX (Ex. 11). The Certificate
of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her
statement to the SSA, Leonor certified that she and NH were married and living together
up until the day NH passed away (Ex. 13).
After NH's death, T~ applied for surviving spouse benefits on NH's record (Ex. 14).
On or about November 29, 2002 the SSA notified T~ that she was not entitled as a wife
because of NH's subsequent marriages, and she was not entitled as a divorced wife
because she did not meet the duration of marriage (Ex. 14). Upon reconsideration,
that determination was affirmed, reiterating that the divorce has been proven and
that the marriage did not last for the requisite ten years (Ex. 14). Still, T~ maintains
that she is the legal wife of NH, entitled to widow's benefits.
In examining widow's benefit claims, the SSA must look to the laws of the state where
the wage earner was domiciled at the time of his death to determine whether claimant
qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A)
(2004). In this case, NH apparently was domiciled in Florida at the time of his death.
As such, we must determine whether Florida would recognize the existence of a valid
marriage between T~ and NH.Under Florida law, the validity of a marriage is determined
by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the
marriage between T~ and NH will be considered valid if it is valid under the law of
New York, where the marriage occurred.
1. The Presumption of Validity Attaching to the A~ Marriage
The record indicates that NH had two other marriages subsequent to his marriage to
T~. NH married his third wife, L~, in New Jersey in 1984 and remained married to her
until he died in 2002. Both Florida and New York recognize a strong presumption in
favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Lee's Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor
of validity of the last marriage is stronger than the presumption that the prior marriage
continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great
that in the absence of competent proof to the contrary, it is to be assumed that the
previous marriage has been dissolved either by death or legal action). This presumption
operates to effectuate "a particular public policy such as upholding legitimacy, favoring
the participation in the decedent's estate of one who lived with him as his spouse,
and preserving the validity of a marriage where no strong public policy would be served
by doing otherwise." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to L~ is presumptively
valid under New York law, and she appears to be the legal widow of NH.
However, it is well established that a marriage is void if contracted by a person
whose spouse by a former marriage is living and that former marriage has not legally
been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the A~-L~
marriage may be rebutted if T~ provides evidence which, when weighted collectively,
establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree,
T~ must provide sufficient evidence to prove the Cuban divorce invalid in order to
demonstrate that she is the widow of NH.
2. Effect of the New York Family Court's Determination
A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a
marital res subject to in rem jurisdiction, therefore a judgment determining marital
status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York
issued an Order of Support, finding NH legally chargeable with the support of "Wife,
T~ ." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its
face, the Family Court's decision appears to be a judicial declaration of a subsisting
marriage between NH and T~ , which rests upon a foundation of an invalid divorce.
a. Issue of Subject-Matter Jurisdiction
In this case, there is a question as to whether the Family Court had jurisdiction
to determine that the divorce is void, and thus whether that court's finding is binding
on an Administrative Law Judge deciding T~ 's entitlement to widow's benefits. The
Family Court, formerly known as the Domestic Relations Court, was established and
the Legislature conferred such jurisdiction upon it as was essential to permit it
to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act.
§ 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended
2001, effective 2002). In the exercise of its limited jurisdiction the Family Court
is authorized to determine whether the parties are husband and wife, but such determination
is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction
of the subject matter of the marriage. Consequently, New York law does not recognize
a Family Court's pronouncement of marital status as a "decree of a court of competent
jurisdiction rendered on the merits," and such a determination is not binding on the
parties in a subsequent action outside the Family Court in which there is directly
involved the question of whether the same marriage exists or has been terminated.
Id. at 496.
In Loomis, the Court of Appeals of New York held that a determination by the Domestic Relations
Court of the marital status of the parties is a preliminary matter to exercising or
declining jurisdiction and is not binding on the parties in a subsequent action in
the Supreme Court where the existence of a valid marriage is directly involved because
there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for
support only, the other for an adjudication of marital status). Similarly, the Family
Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent
administrative hearing wherein it will be determined whether T~ is the legal widow
of NH. The Family Court's decision was only incident to its finding that NH was responsible
for supporting T~ . Thus, the preliminary matter of the marital status in Family Court
is not res judicata.
Since the jurisdiction to determine the subject of marriage, where the validity of
such marriage is a primary issue, lies exclusively in the Supreme Court, the Family
Court's finding is not determinative and T~ can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has
exclusive subject matter jurisdiction over divorce actions).
b. Issue of Failure to Include an Indispensable Party
Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the
Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such
an assertion. The noncompulsory nature of the court's judgment regarding marital status
is evident with an acknowledgment that Isabel, NH's second wife to whom he was married
at the time of the proceeding, was not a party to the action.
It is well-known that a court may always consider whether there has been a failure
to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be
"inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005).
With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for
a declaration of legal relations serves a legitimate purpose only where all persons
who are interested in or might be affected by enforcement of such rights and legal
relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R.
§ 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to
third parties who should not be "embarrassed by judgments purporting to bind their
rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.
New York Courts have held that, where in an action by one spouse for a judgment declaring
that a foreign divorce decree is null and void, it appears that subsequent to the
procurement of the divorce the defendant married a third person, such third person
must be joined as a party defendant, since that person is an indispensable party without
whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y.
1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App.
Here, NH was married to I~ at the time of the Family Court's proceeding. Although
the court's declaration of the nullity of the Cuban divorce related primarily to the
marital status of NH and T~ , it also necessarily implied that the Amado-Isabel marriage
was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel
was a necessary and indispensable party without whom no effective judgment regarding
marital status could have been rendered. Accord Bard, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all
persons whose rights may be affected by the judgment there cannot be a final and complete
determination of the controversy). The fact that Isabel was not a party to the action
confirms that the court's finding of a surviving marriage is not binding in T~ 's
administrative hearing concerning her eligibility for widow's benefits. It is, thus,
our opinion that the ALJ may form his own conclusion with respect to whether a marriage
subsists or whether the Cuban Divorce is valid.
3. Recognition of the Cuban divorce decree
In determining whether T~ is the legal widow of NH, the issue of marital status is
complicated by the contradictory evidence regarding the divorce. T~ contends that
she was separated from NH for over 39 years, but was never served with divorce papers.
However, NH submitted proof of the Cuban divorce when he applied for Social Security
benefits. The first question to be determined is the extent to which recognition must
be accorded the Cuban divorce decree in a New York court. Secondly, the possibility
that the divorce may have been fraudulently obtained must be considered.
a. The Doctrine of Comity
New York courts will generally accord recognition to the judgments rendered in a foreign
country under the doctrine of comity which is the equivalent of full faith and credit
given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert A. L~, American Conflicts
Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce
action is precluded from attacking the validity of the foreign judgment in a collateral
proceeding brought in the New York courts, absent some showing of fraud in the procurement
of the judgment or some showing that recognition of the judgment would violate a strong
public policy of the State. See Greschler, 414 N.E.2d at 697-698.
In the case at bar, T~ has failed to adduce evidence demonstrating that the Cuban
court did not have personal jurisdiction over her. The record includes the translation
of the Cuban Decree which indicates that T~ was the plaintiff and was represented
by Solicitor Francisco Rodriguez. Thus, her appearance, through an attorney, in the
divorce action gave the Cuban court jurisdiction to grant the divorce unless such
appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce
decree under the doctrine of comity unless T~ can demonstrate fraud or a violation
of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).
b. Demonstrating Fraud
The Social Security Act authorizes the Commissioner to adopt reasonable and proper
rules and regulations regarding the nature and extent of proof and evidence necessary
to establish the right to benefits. 42 U.S.C. § 405(a) (2006). SSA regulations clearly
identify a claimant's responsibilities for proffering convincing evidence to fulfill
eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708 (2006). In deciding
whether evidence is convincing, the SSA will look to whether "information contained
in the evidence agrees with other available evidence, including our records." 20 C.F.R.
§ 404.708(f) (2006).
Here, the record contains evidence of a valid divorce between NH and T~ as well as
NH's subsequent marriages. This evidence conflicts with T~ 's claim that she is the
widow of NH as well as the determination of the Family Court that the Cuban divorce
is void. Since T~ bears the ultimate burden of proving that she is entitled to benefits
as NH's widow, it is her obligation to provide clear and convincing evidence that
the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive.
T~ has not produced any records which tend to show that she did not bring the divorce
suit or that her power of attorney was unauthorized. T~ , therefore, has not carried
her burden of proof. Consequently, if no further evidence is submitted, the presumption
of validity attaching to NH's marriage with Leonor will continue, New York courts
will give recognition to the divorce decree, and T~ cannot receive benefits as NH's
4. Divorced Wife's Benefits
Section 202(e) of the Social Security Act provides that widow's insurance benefits
may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant
for a surviving divorced spouse's insurance benefit must meet several requirements:
she must have been validly married to a fully insured worker for a period of at least
ten years immediately preceding a final divorce; must have attained age 60, or have
attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§
402(e), 402(b)(1), 416(d)(1) (2006).
It is evident that T~ R~ is ineligible for divorced wife's benefits. Although she
meets the second two requirements - she is 85 years of age and has never been remarried
- the duration requirement has not been met. The divorce occurred in 1960, less than
three years after T~ and NH married. Since the marriage subsisted for less than ten
years, T~ cannot receive divorced wife's benefits on NH's account.
In conclusion, on our understanding of the current factual record, T~ cannot be entitled
to widow's benefits on NH's account because she has not proven through clear and convincing
evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts
may establish that the Cuban divorce is void. However, T~ bears the burden of proof
and if no further evidence is provided she has not met her burden.