You have asked for advice on whether a valid marriage exists between the number holder,
Emil R~, and the claimant, Joan R~. As we understand the facts of the case, Joan R~
contends that her first undissolved marriage to Raymond S~ was void for bigamy based
on his prior marriage to Eileen D. P~ S~, and that therefore her subsequent marriage
to Emil R~ is still valid. Based on the current factual record, we cannot draw any
conclusion but have outlined possible outcomes depending on what is uncovered in further
development of the facts.
Joan R~, formerly Joan E. V~, married Raymond S~ in New York on December 3, 1954 in
a ceremony solemnized by clergyman, Reverend John U~ (Ex. 1). In the December 2, 1954
Affidavit for License to Marry, Raymond indicated that he had never been married and
never been divorced (Ex. 2). In addition, Joan and Raymond listed New York as the
place of their residence. According to Emil R~'s statement to the Social Security
Administration (“SSA”), Joan and Raymond had three children together (Ex. 3). There
is no further information in the record regarding the duration or character of the
Joan attested to the City Magistrate of New York City on September 23, 1958 that Raymond
committed bigamy by marrying her when he was still married to Eileen (Ex. 4). The
record does not indicate when Joan first became aware of Raymond's prior marriage
to Eileen. Raymond subsequently pled guilty on January 21, 1959 to perjury in the
second degree (under New York Domestic Relations Law § 16 and punishable under New
York Penal Law § 210.10) (Ex. 5).
In Emil's letter to the SSA, he stated that Joan told him she had never divorced “Alan
S~" (Ex. 6). According to Emil, Joan and he met with an attorney, Anthony D~, to procure
a divorce for Joan in preparation for their own wedding (Ex. 3). Attorney D~ advised
them that a divorce would be unnecessary as the marriage with Raymond was void because
of Raymond's bigamy. Emil testified that on the strength of D~'s advice, Joan did
not divorce Raymond and that both he and Joan entered into their marriage believing
that the marriage was legal. This is consistent with Joan's statement to the SSA that
when she married Emil, she was free to marry and that Emil knew it (Ex. 7).
On July 16, 1962, in her sworn Application for Marriage License, Joan listed her name
as “Joan Vaughn” and noted that she had never been married (Ex. 8). Emil listed the
fact of his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob M~,
Jr. in the Circuit Court of Winston County, Alabama (Id.).
As to Emil's prior marriage, your records reference a marriage between Emil and Theresa
C~n September 18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham,
Alabama (Ex. 9). The record does not contain copies of the marriage license or certificate.
On his application for a license to marry Ellen, Emil identified only Theresa C~ as
a prior wife and that she was alive at the time of the application (Ex. 10). He further
listed incompatibility as the grounds for divorce and noted the date of divorce as
June 2, 1958. Your records, however, contain a copy of the Report of Divorce between
Emil and Theresa filed with the Alabama Department of Health (Ex. 11). That report
lists the date of their marriage as September 27, 1950 and the date of the final decree
of divorce as June 17, 1958. The divorce decree indicated that the divorce was granted
to Theresa on the grounds of abandonment and that at the time of the divorce they
had one child under eighteen years. The divorce decree contained no information regarding
Emil's place of residence. Similarly, for Theresa, the divorce decree provided no
information on her city or county of residence and only listed “Ala.” as her state
of residence. No judge's signature appears on the divorce decree. The divorce decree
is signed by Dorothy S. H~, State Registrar, but the date of her signature appears
to be June 19, 1995. Your records show no social security number for Theresa C~ (Ex.
On July 21, 1962, Emil married Joan in Union City, New Jersey in a ceremony solemnized
by Judge Frank G. H~ (Ex. 8). Although they married in New Jersey, both Emil and Joan
listed New York as their place of residence on the Application for Marriage License.
The Joan-Emil marriage produced no children, and Joan and Emil subsequently separated
(Ex. 3). Emil stated that they separated in 1964 (Ex. 3), while Joan asserted that
they separated in the late 1960s (Ex. 7). Emil testified that prior to his current
marriage to Ellen G~, he consulted attorney D~ about obtaining a divorce from Joan
(Ex. 3). According to Emil, D~ told him that securing a divorce would be unnecessary
as the marriage was void for Joan's bigamy in failing to divorce Raymond prior to
marrying Emil. Emil testified that based on D~'s counsel, he married Ellen on August
7, 1965 without first divorcing Joan. Your records confirm that Emil married Ellen
on August 7, 1965 in Brooklyn, New York (Ex. 9-10).
While Emil asserted that he had no further contact with Joan after their separation
in 1964 (Ex. 3), Joan stated in her claim to the SSA that Emil informed her of his
plans to marry Ellen (Ex. 7). Joan stated that when she told Emil to get a divorce
first, he made no comment and drove off. She reported never receiving any divorce
papers from Emil.
Emil filed for retirement benefits in November 1991 (Ex. 3). He claims that because
he knew his marriage to Joan was bigamous and “not legal,” he did not list Joan on
his benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that Emil listed Joan as a prior spouse, indicating
that they married on June 19, 1962 and that their marriage ended on January 15, 1963
(Ex. 9). Your office has also confirmed that Ellen R~ is in current payment status
as the spouse on Emil's record. Joan has filed an application for spouse's benefits,
claiming she is Emil's legal spouse. We understand from your office that Emil was
residing in Florida at the time Joan filed her application.
In examining wife's benefit claims, the SSA will look to the laws of the State where
the insured had a permanent home at the time his wife applies for wife's benefits.
20 C.F.R. § 404.344. If the spouses were validly married under State law at the time
of the wife's application for benefits, the relationship requirement will be met.
Id. In this case, Emil was domiciled in Florida at the time Joan filed her application
for wife's benefits. As such, we must determine whether Florida would recognize the
existence of a valid marriage between Joan and Emil.
Under Florida law, the validity of the marriage between Joan and Emil would be evaluated
with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944)(holding that in determining the validity of a marriage,
reference will be made to the “law of the place where it is contracted.... And, if
valid according to the law of the State where contracted, a marriage is to be regarded
as valid in every other jurisdiction”)(citations omitted). Thus, under Florida law,
the marriage between Joan and Emil will be considered valid if it is valid under the
law of New Jersey, where the marriage was contracted.
1. The Effect of the Joan-Raymond Marriage on the Joan-Emil Marriage:
Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly
obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because Joan and Emil properly obtained and delivered their
marriage license prior to having the marriage solemnized by Judge H~, New Jersey would
normally recognize that Joan and Emil entered into a valid ceremonial marriage on
July 21, 1962, especially since neither Joan nor Emil instituted divorce proceedings
against each other.
To establish eligibility for spousal benefits, presentation of a copy of the public
record of marriage normally constitutes preferred evidence of a valid ceremonial marriage,
such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709,
404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the
validity of the latest of two successive marriages involving a common participant.
Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN00305.035. Thus, it facially appears that Joan's marriage to Emil is presumptively
The record, however, contains additional information indicating that Joan was already
validly married to Raymond at the time she married Emil. New Jersey accepts the common
law proposition that “[c]ivil disabilities, such as a prior marriage, … make the contract
of marriage void Ab initio and not merely voidable.” Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage
is a legal nullity, a judgment of nullity is not required to render the marriage void.
Minder, 83 N.J.Super. at 163, 99 A.2d at 71. Joan's marriage to Emil may be void, therefore,
because of Joan's possible bigamy.
Determining who has the burden of proving the validity of the Joan-Raymond marriage
is the critical issue in this case. Although New Jersey case law furnishes a burden-shifting
framework for determining the presumptive validity of subsequent marriages, the Social
Security Act authorizes the Commissioner to adopt reasonable and proper rules and
regulations regarding the nature and extent of proofs and evidence necessary to establish
the right to benefits. 42 U.S.C. § 205(a). 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. 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). Here, the record
contains evidence of a valid ceremonial marriage between Joan and Raymond as well
as Joan's testimony that she married Raymond and never divorced him. Accordingly,
this evidence conflicts with the evidence of the validity of Joan and Emil's marriage,
and Joan bears the burden of proving that her marriage to Raymond, which Joan alleges
was Raymond's second marriage, was void because of his bigamy.
a. The Presumption of Validity Attaching to the Joan-Raymond Marriage:
The record indicates that Joan married Raymond in New York on December 3, 1954. Under
New York Domestic Relations Law, a marriage is valid if the parties to the marriage
properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (M~ 2003), and the marriage is solemnized by “a clergyman
or minister of any religion….” N.Y. Dom. Rel. Law § 11 (M~ 2003). Because Joan and
Raymond properly obtained and delivered their marriage license prior to having their
marriage solemnized by a clergyman, New York would normally recognize that Joan and
Raymond entered into a valid, ceremonial marriage on December 3, 1954.
As with New Jersey, once a ceremonial marriage has been performed, New York recognizes
a strong presumption in favor of holding the latest of subsequent ceremonial marriages
valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Meehan's Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption
favoring the validity of the second marriage is stronger than the presumption that
the prior marriage continued”). Furthermore, the presumption of validity of the second
marriage becomes “stronger and stronger where a substantial injustice would be created
by invalidating that marriage.” Grabois, 89 F.3d at 100; see 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).
In this case, it seems unlikely that a court would find that the balance of equities
tips in favor of invalidating Joan's marriage to Raymond. Joan and Raymond entered
into a ceremonial marriage that allegedly produced three children. The presumption
of validity will be particularly strong here as the legitimacy of Joan and Raymond's
children may otherwise be cast in doubt. Furthermore, no strong public policy would
be served by permitting Joan to void her marriage to Raymond in order to obtain wife's
benefits from Emil, a man to whom she was putatively married for only three years
and with whom she had no children, and who has been married to his current wife, Ellen,
for thirty-nine years. On these facts, New York will likely recognize the presumption
of validity that attaches to Joan and Raymond's ceremonial marriage.
Joan, however, does not dispute that she participated in a marriage ceremony with
Raymond. She contends that because Raymond was previously married to another living
woman at the time of their marriage, her marriage to Raymond was necessarily void
under New York law. New York Penal Law establishes that “a person is guilty of bigamy
when he contracts or purports to contract a marriage with another person at a time
when he has a living spouse, or the other person has a living spouse.” See N.Y. Penal Law § 255.15 (M~ 2003). New York Domestic Relations Law states that “a
marriage is absolutely void if contracted by a person whose husband or wife by a former
marriage is living....” N.Y. Dom. Rel. Law § 6 (M~ 2003). Furthermore, because a void
marriage exists as a legal nullity, no judgment or judicial declaration of nullity
is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).
To rebut the presumption of validity on the grounds of Raymond's bigamous act, Joan
must prove that, at the time of her marriage to Raymond, Raymond and Eileen had been
validly married and the marriage had not terminated by annulment, divorce, or Eileen's
death, even though this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, Joan must
establish that Raymond's prior marriage to Eileen was “valid” by disproving through
clear and convincing evidence “every reasonable possibility which would validate”
the prior marriage. Seidel, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence
of a divorce or annulment in a diligent record search of all counties in which both
parties to the first marriage have resided will suffice to rebut the presumption.
Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re Brown's Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the “strong evidence”
of a certified statement as to a record search constituted prima facie evidence of
no record of divorce and outweighed the oral testimony of putative spouse and presentation
of an uncertified divorce decree); In re Lancaster's Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was
sufficiently rebutted on the basis of appellant's testimony that he never instituted
nor was served with any dissolution proceedings; no record of divorce in a search
of all five New York City boroughs in which decedent resided; and decedent's false
statement on her marriage license application that she had never before been married
or divorced); In re Bauer's Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where
there were no children, the presumption was sufficiently rebutted on showing that
decedent's first husband was still alive at and after the second marriage had been
entered, and that decedent had falsely declared single status in executing her application
for the subsequent marriage license).
b. Raymond's Indictment for Perjury and Possible Bigamy:
Based on the record, it can be reasonably inferred that Raymond was initially charged
with bigamy for marrying Joan while he was still married to another living woman.
He was then indicted for perjury in the first degree. At the time of Raymond's indictment,
a conviction for perjury in the first degree required materiality to the action or
matter involved. If he had been convicted of first degree perjury, then we might have
assumed that Raymond falsely stated in his second marriage application that he was
never before married and never before divorced, and that but for his false attestation,
no marriage could have been contracted between Joan and Raymond. Raymond, however,
was not convicted of first degree perjury but pled guilty only to second degree perjury.
In 1958, a conviction for perjury in the second degree did not require materiality
to the action at hand. Because second degree perjury did not require materiality to
the action, we may not assume that Raymond admitted to having married Eileen prior
to marrying Joan and that his marriage to Eileen was still valid at the time he married
Joan. Accordingly, Joan may not rely on Raymond's guilty plea to perjury in the second
degree as evidence of a valid marriage existing between Raymond and Eileen at the
time of Joan's marriage to Raymond.
Thus, Joan must present clear and convincing evidence that Raymond was validly married
at the time of her marriage to him, and that his prior marriage had never been terminated.
Additionally, Joan must provide proof of a diligent search of all records in all counties
in all countries in which Eileen and Raymond resided to show that the marriage was
never terminated. SSA may assist her. If Joan is unable to carry her burden of proof,
the presumption of validity attaching to her marriage with Raymond will continue,
and she cannot receive benefits on Emil's record.
2. Possible Invalidity of the Emil-Theresa Divorce:
Prior to his marriage to Joan, the record indicates that Emil was married to, and
divorced from, Theresa. Emil and Theresa, however, may not have been validly divorced.
If the grant of divorce between Emil and Theresa was not legitimate, then Joan's marriage
to Emil would be void and she could not receive benefits as Emil's spouse. Furthermore,
we note that because Joan and Emil did not reside together at the time of her application
for spousal benefits, Joan may not receive benefits as Emil's deemed wife. If further
development of the facts by the SSA establishes that the divorce between Emil and
Theresa was invalid, then Joan cannot receive benefits as Emil's spouse because his
marriage to Theresa was never terminated. There are no copies of a marriage certificate
or application for a marriage license for Emil and Theresa. Although your records
contain a copy of Emil and Theresa's divorce decree, it is possible that the divorce
decree may have been invalid, either because of jurisdictional infirmities arising
from Theresa's failure to establish bona fide residence in Alabama or because the
divorce may have been fraudulently granted.
a. Issues of Jurisdiction
With respect to the issue of Theresa's residency in Alabama, the Alabama Supreme Court
has explicitly held that “Alabama courts have no jurisdiction over the marital status
of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred
on the courts, even with the parties' consent.” Winston v. Winston, 279 Ala. 534, 537 (1966)(reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama
established that “[w]hen the defendant is a nonresident, the other party to the marriage
must have been a bona fide resident of this state for one year next before the filing
of the bill, which must be alleged in the bill and proved….”
In this case, there is a question as to whether Theresa established a bona fide residence
in Alabama when she instituted divorce proceedings against Emil, given that the divorce
decree provided no information on her city or county of residence and only listed
“Ala.” as her state of residence. And, if Theresa was a resident, we do not have any
information regarding the length of her residency. Although Emil noted in his application
to marry Ellen that Theresa had served him with summons in Brooklyn, we do not have
a copy of the summons. Further factual development by the SSA, especially review of
the allegations regarding residence contained in the summons, should be undertaken
to determine Theresa's residency status at the time of the divorce proceedings.
The issue of the validity of Emil and Theresa's divorce is further complicated by
the possibility that their divorce decree may have been fraudulently granted by Judge
M~. Charges were brought against Judge M~ in 1964 for granting over 5000 divorces
to nonresidents in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972)(affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection
with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge M~'s
stamped or typed name, an embossed court seal, and certification by the Register in
Chancery attesting that the decree was on file and recorded in the records of the
Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled
and unrecorded. Edwards, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed
the trial court's jury instruction that “if you find from the evidence that a divorce
decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of
Alabama was not signed by the Judge of that court and did not in some other way reflect
that it was the decision of the court and was not filed or enrolled in the records
of that court, then you would be justified in finding that such a decree was not a
valid divorce decree.” Id. at 882 (emphasis in original)(citations omitted).
The relevant facts in the record are insufficient to determine whether the Emil-Theresa
divorce was fraudulently granted. First, Emil admitted that he did not appear in person
in court. Second, the divorce decree listed Theresa's residence as “Ala” but included
no other information on residency for Theresa or Emil. Third, the divorce decree contained
no signature by Judge M~. Fourth, although the divorce decree contains a signature
by Dorothy H~, State Registrar, attesting to the embossment by official seal, the
date of her signature appears to be June 19, 1995. Finally, the divorce decree, on
its face, appeared to have been validly recorded in the Alabama Department of Health,
Bureau of Vital Statistics. Accordingly, further research must be conducted to ascertain
whether Judge M~ fraudulently granted a divorce to Emil and Theresa. We suggest that
the SSA request official copies of Emil and Theresa's divorce decree from the Winston
County Clerk at the Winston County Vital Records and the Alabama Department of Public
Health, Center for Health Statistics, Office of Vital Records. The addresses are:
We recognize that the ultimate burden of proof lies with Joan to prove that she is
entitled to benefits as Emil's spouse. However, because the SSA, an uninvolved party
to the Emil-Theresa marriage, questions the validity of the Emil-Theresa divorce and
because the SSA has greater investigative resources than Joan, the courts of New York
will likely find that the SSA has the burden of conducting the substantial records
searches required to determine the validity of the Emil-Theresa marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972)(holding that “[g]iven the comparatively great investigative
resources of the Secretary and the apparently restricted means of appellant, it seems
more appropriate to require the agency to undertake the substantial record searches
necessary to negative the continued validity of [the prior marriage] … [particularly
as] the presumption favoring a later marriage assumes greater force where…the later
marriage is attacked, not by a putative first wife or children of the first marriage,
but instead by a party, like the Secretary, who is altogether a stranger to any domestic
relationship in question”); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983)(where plaintiff requested
that the Secretary conduct the considerable record searches required to prove the
continued validity of her husband's prior marriage, “[i]t was not the plaintiff's
responsibility to ferret out this information. It was the Secretary's obligation to
overcome the presumption of the validity of [plaintiff's] marriage”). It is important
to note, however, that if, after reasonable efforts, the evidence is inconclusive
or insufficient to establish the invalidity of Emil's divorce from Theresa, the presumption
of validity attaches to Emil's marriage to Joan. Joan, therefore, might be entitled
to receive spousal benefits as the wife of Emil, assuming, of course, that she has
sufficiently demonstrated that her marriage to Raymond was void.
c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:
The Supreme Court of New Jersey has held that where the validity of an “ancient foreign
divorce” is challenged, equitable principles of fairness will apply to defeat invalidation.
Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998)(holding that although husband provided
sufficient evidence to rebut the presumption of validity of his marriage, including
undisputed evidence of jurisdictional defaults associated with his wife's prior 1968
Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the
validity of marriage based on the invalidity of wife's prior divorce). The court cautioned
against “the human and legal problems that would result if those ancient foreign divorces
are found to be invalid many years later.” Id. at 916, 152 N.J. at 233.
In determining whether a prior, ancient divorce will be found invalid, the court will
consider factors such as “(1) the length of time the parties were [subsequently] married,
(2) the acts undertaken by the parties that indicate they held themselves out to as
husband and wife, and (3) the good faith of the party who procured the first divorce.”
Heuer, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, Emil was married
to Joan on July 21, 1962, and then to Ellen from August 7, 1965 to the present time.
There is nothing in the record to indicate that Emil did anything other than to hold
himself out to the public as married to Joan and later to Ellen. There is also no
indication that Emil was involved in fraud. The record is not sufficient, however,
to determine whether Theresa acted in good faith in procuring the divorce.
Given the language of the Heuer decision, a court in New Jersey would likely find that the divorce between Theresa
and Emil was valid, even if additional factual development of the record conclusively
determined that there was jurisdictional error, a fraudulent grant of divorce, or
fraud on the part of Theresa in pursuing a divorce in Alabama. If it turns out that
Emil participated in the fraud, especially if Joan was also involved, you should contact
us to discuss the issue.
In conclusion, to receive spousal benefits on Emil's record, Joan must provide clear
and convincing evidence that Raymond was validly married at the time of her marriage
to him, and that his prior marriage had never been terminated. If Joan can provide
evidence sufficient to establish that her marriage to Raymond was void, the validity
of Emil's divorce from Theresa must be considered as discussed above. If Joan is unable
to carry her burden of proof, the presumption of validity attaching to her marriage
with Raymond will continue, and she cannot receive benefits as Emil's spouse.
Barbara L. S~
Chief Counsel, Region II
Assistant Regional Counsel