You have asked whether Gertrude D~ would be entitled on the record of Philip D~ as
either a surviving divorced spouse or a widow.
SUMMARY OF EVIDENCE
Gertrude D~ was born on December 30, 1924. On October 10, 1948, she and Philip D~,
the wage earner, were married in the State of New York. According to the claimant,
she went to Juarez, Mexico to get a divorce from the wage earner. A lawyer in New
York arranged the divorce. Although the wage earner did not physically go to Juarez,
Mexico, he purportedly was aware of the divorce. Neither the claimant nor the wage
earner were residents of Mexico at the time of the divorce. Neither one ever remarried.
On January 14, 2004, the wage earner died domiciled in Phoenix, Arizona.
On October 4, 2006, the claimant filed for benefits as a surviving divorced spouse.
She no longer has a copy of the divorce decree, and the New York attorney who purportedly
helped her obtain the divorce is deceased. Further, the Foreign Service Post could
not find any record of a divorce in Juarez, Mexico, between the claimant and the wage
earner from 1955 through 1965.
An individual may qualify for Title II widow's benefits as a surviving divorced spouse
if he or she was married to the wage earner for at least ten years prior to the date
their divorce became final; he or she is at least 60 years old or at least 50 years
old and has a disability as defined by the Social Security Act; and is unmarried (or
married under circumstances not applicable here). Social Security Act § 216(d), 42
U.S.C. § 416(d); 20 C.F.R. § 404.336 (2006); POMS
RS 00207.001. The determination of the claimant's marital status is governed by the laws of Arizona,
which is the state where the wage earner was domiciled at the time of his death. Social
Security Act § 416(h)(1)(a)(i), 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345;
POMS GN 00305.170(A)(2).
The claimant has the burden of proving that she is divorced from the wage earner.
20 C.F.R. § 404.336. Because neither the claimant nor the wage earner resided in Mexico
at the time of the divorce, the divorce would be found invalid in Arizona. See Unruh v. Industrial Commission, 301 P.2d 1029, 1031 (Ariz. 1956) ("mail order" Mexican divorce invalid where neither
party resided in Mexico at the time); see also Cross v. Cross, 381 P.2d 573, 574 (Ariz. 1963) (Mexican court did not have jurisdiction to adjudicate
the divorce therefore spouse secured a patently invalid Mexican divorce).
Although the claimant was not validly divorced from the wage earner, she is estopped
from challenging the invalidity of the divorce because she sought the Mexican divorce.
See Unruh, 301 P.2d at 1031 (an individual cannot question the validity of a divorce when he
or she actively participated in securing the divorce); Green v. Green, 269 P.2d 718, 720 (Ariz. 1954); see also POMS GN 00305.175(A)(2) (an individual may be estopped to deny the validity of a divorce if he or she
was a plaintiff in the divorce action).
Where, under state law, the claimant is estopped to assert the invalidity of a divorce
from the wage earner, SSA will not consider the claimant to be the wage earner's spouse.
POMS GN 00305.180(A)(3), which references GN 00305.180(C)(2). SSA will, however, "consider the divorce (for Social Security purposes only)
a final divorce" and the claimant the surviving divorced spouse if she otherwise qualifies
for widow's benefits. Id.; see also Memorandum from Regional Chief Counsel, San Francisco, to Center for Programs Support,
Region IX, Validity of Purported Mexican Divorce (June 28, 2005). Here, the claimant
is unmarried, is 82 years of age, and was married to the wage earner for ten years
before the divorce.