PR 05115.035 New York
A. PR 06-101 Validity of Foreign Divorce
DATE: March 28, 2006
New York law states a foreign divorce will not be recognized if none of the parties were residents of the foreign country. NH's divorce from his first wife was invalid and his subsequent marriage to claimant is void. Florida looks to the jurisdiction where the marriage took place to determine its validity. Florida courts would decline to recognize the marriage as valid, thus the claimant could not inherit a spouse's share of NH's personal property if he were to die without a will.
When determining entitlement for Lydia Perez A~ (Claimant) to benefits as the spouse of Florida resident Daniel A~ (NH), should the Social Security Administration (SSA) apply any provisions of New York or California law to determine whether NH's Dominican Republic divorce from Gloria Frazier A~ (first wife) would be recognized in Florida as a valid divorce?
For the reasons stated below, it is our opinion that the divorce obtained in the Dominican Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and Claimant has not presented sufficient evidence to qualify for benefits as a deemed spouse.
According to the file, NH married his first wife on October 20, 1969. NH and his first wife separated some time in 1985. On September 29, 2004, while NH resided in New York and his first wife resided in California, NH obtained a divorce in the Dominican Republic without personally appearing in the Dominican Republic or being domiciled there. NH's first wife states she never divorced NH. On December 15, 2004, NH married Claimant in New York. NH and Claimant currently reside in Florida. On June 8, 2005, Claimant filed an application seeking spouse's benefits on NH's account.
The Social Security Act (Act) provides that “an applicant is the wife, husband, widow, or widower” of an insured individual if “the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . .” § 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony 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 such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of these three methods.
Claimant and NH Were Not Validly Married.
At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. It is well established in Florida that a presumption of validity 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 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. In this case, NH's first wife states she and NH never divorced.
However, once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is 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 death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in New York, we must look to that state's 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 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the latter marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” See Grabois, 89 F.3d at 100; see also Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York 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.” Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y. 1984) (stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).
Here, a question remains regarding the validity of NH's divorce from his first wife, which affects the validity of his subsequent marriage to Claimant. According to New York law, “a marriage is absolutely 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). In this case, NH sought a divorce from his first wife in the Dominican Republic while residing in New York. New York law states that a foreign divorce will not be recognized if none of the parties were residents of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither NH nor his first wife resided in the Dominican Republic at the time of the divorce. Moreover, neither party personally appeared in the Dominican Republic for the divorce proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent marriage to Claimant is void. Neither Florida nor New York would look to California law to determine the validity of Claimant's marriage.
Claimant Could Not Inherit a Widow's Share of NH's Personal Property.
Claimant could also be entitled to spousal benefits upon a finding that Florida courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.
If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity. New York would not recognize the validity of the marriage of NH and Claimant. Because we believe New York would not recognize Claimant's marriage as valid, we believe that Florida courts would also decline to recognize their marriage as valid. Therefore, we further feel Florida would not find Claimant was NH's surviving spouse within the meaning of the statute.
It is our opinion that Claimant could not inherit a spouse's share of NH's personal property if he died intestate, because she was not his lawful wife. Therefore, Claimant is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A) of the Act.
The Commissioner Could Not Find A Valid Deemed Marriage.
As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony 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. See § 216(h)(1)(B)(i) of the Act. Here, there was a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that Claimant had knowledge of NH's prior marriage and participated in his acquiring the foreign divorce. However, it is unclear from the records provided whether Claimant had knowledge that the foreign divorce would not be recognized as valid. Because there is insufficient evidence in the record, we are unable to determine that Claimant meets the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development may be appropriate.
Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is void, and she has not met her burden of proving she qualifies as a deemed wife.
Mary Ann S~
Regional Chief Counsel
Assistant Regional Counsel