We have received your April 3, 2008 request for a legal opinion as to "whether New
York Courts recognize the validity of the Mexican divorce between Number Holder ("NH")
and Bonner M.B. M~ and if New York applies the estoppel principle for divorce and
if Bonner M.B. M~ is the legal spouse of the Number Holder."
We conclude that:
1) The laws of Virginia govern in this case
2) The finding of PR 02-047 is dispositive of this case
3) Virginia would recognize the validity of the Mexican divorce
A marriage license shows the NH married Bonner M~ B. in Houston, Texas, on June 2,
1960. According to the Columbia, Maryland District Manager's memorandum, in November,
1970, the NH was living in New York. In November 1970, Mrs. M~ was living in Texas,
according to her caregiver. On November 6, 1970, the NH and Mrs. M~ entered into a
_*separation agreement in Houston, Texas. According to the NH, he became a resident
of Mexico for one day and obtained a divorce from Bonner M~ on 11/7/70.
A copy of the divorce decree from the first civil court of Ciudad J~, Chihuahua, Mexico,
states that the NH personally appeared before the subscribing judge, ratified the
complaint including his express submission to the jurisdiction and competence of the
court, and submitted the certificate of his inscription in the Official Registry of
the City of Chihuahua. An attorney for Ms. Bonner M~ appeared and answered the complaint,
and expressly submitted his client to the jurisdiction of the court. The divorce decree
further approved and adopted the existing separation agreement.
The NH filed a claim for retirement benefits on April 1, 1999. According to that claim,
the NH remarried in February 1975 in Florida.
Bonner M~ filed an application for spouse's benefits on the NH's record on February
15, 2008. You have informed us that the NH is alive and receiving retirement benefits
in Virginia. You have told us that based on ORS, CSR, his MBR, and the THIS query,
you believe the NH resided in the state of Virginia at the time Bonner M~ filed her
claim for benefits on the NH's account.
GN 00305.170 states that the determination of the validity of a divorce is based on the law of
the state of the worker's domicile at the time of filing of an application for divorced
spouse's benefits. In this case, assuming that Mr. M~ was domiciled in Virginia at
the time of Bonner M~'s filing for divorced spouse's benefits, the law of Virginia
would apply to determine whether the divorce was valid.
The analysis from a precedential opinion regarding Virginia law (PR 02-047) found
in the POMS at PR 06210.052, governs the analysis in this case. In the Virginia case of Richard H. M~, the Agency
determined that Virginia would find that a Mexican divorce was valid under circumstances
parallel to those in the M~ divorce.
In the Richard H. M~ case, Isabelle L. M~ married Donald T~ on June 4, 1952 and obtained
a divorce from J~, Mexico on November 29, 1963. Both parties were domiciled in New
York at the time of the divorce. Isabelle appeared in person in the Mexican court
and proved that she was registered in the official book of residents of J~. Donald
T~ was represented by an attorney and expressly submitted to the jurisdiction of the
court. A separation agreement previously entered into by the couple was incorporated
into the divorce decree. Both parties remarried. Isabelle's second husband, Richard
M~ died on October 29, 2001 and Isabelle applied for surviving spouse's benefits on
Richard M~'s record.
The Agency determined that under Virginia law, while generally a foreign divorce will
be recognized as valid, that is not the case when neither spouse was a good-faith
domiciliary in the foreign country. So the Agency concluded that Virginia could refuse
to recognize the divorce because neither Isabelle nor Donald T~ was domiciled in Mexico
at the time of the divorce. However, the Agency went on to find that a Virginia court
would likely find the divorce valid because there is a strong presumption under state
law that a marriage last-in-time is valid and that prior marriages were terminated
by divorce or death.
Additionally, the Agency determined that a Virginia court would apply the doctrine
of estoppel to find the divorce was valid, since both Isabelle and Donald T~ submitted
to the Mexican court's jurisdiction. Alternatively, the court would apply the doctrine
of laches to preclude any challenge to the divorce's validity because of the delay
in time before any attack on the divorce and the ex-husband's remarriage.
The M~ divorce parallels the factual situation in the Richard M~ case, and therefore,
we conclude that Virginia would find the Mexican divorce to be valid.
Very truly yours,
Barbara L. S~
Jennifer S. R~
Assistant Regional Counsel
_* The only documents provided are the divorce decree, marriage license, and copy
of Mrs. M~'s application for spouse's benefits. The remainder of the facts are derived
from the memorandums from your office and the Columbia, MD, District Manager. This
opinion is based on the facts as presented. However, we recommend verification of
the address of the NH at the time of the filing of Mrs. M~'s application since it
is crucial to the application of the appropriate state's law.