Even if divorce proceedings had been properly adjudicated under Mexican law, such divorce would be a nullity because neither the claimant nor the wage earner domiciled in Mexico at the time. The claimant was not validly divorced from the wage earner; therefore, she is estopped from denying the validity of the divorce since she remarried after the divorce. The claimant is the wage earner's widow but would not be entitled to widow's benefits on his record because of her remarriage. However, SSA should consider the claimant's divorce from the wage earner a final divorce and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits.

QUESTION

You requested an opinion as to whether Beatriz S~ (the claimant) could become entitled to widow's benefits as a surviving divorced spouse on the record of Juan A. M~ (the wage earner).

SUMMARY OF EVIDENCE

The claimant was born on November 5, 1934. On April 8, 1952, the claimant and the wage earner were married in Tucson, Arizona. The claimant and the wage earner purportedly divorced in May 1969.

On November 1, 1969, the claimant participated in a marriage ceremony with Angel Soto in Mexico. Sometime around 1972 or 1973, the wage earner participated in a marriage ceremony with Guadalupe M~. On January 9, 1983, the wage earner died in the State of California. Guadalupe M~ is receiving widow's benefits as the surviving spouse of the wage earner.

On February 19, 1985, the claimant and Mr. Soto were granted a divorce decree in Mexico. On July 4, 1985, the claimant married Silverio V~ in the State of Nevada. On July 14, 1986, the claimant and Mr. V~ were granted a divorce in the State of Arizona. On June 18, 1989, the claimant married Abelardo M~ in Arizona. On July 27, 1993, the claimant and Mr. M~ were granted a divorce in Arizona.

ANALYSIS

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). 42 U.S.C. § 416(d); 20 C.F.R. § 404.336 (2004); Program Operations Manual System (POMS) RS 00207.001. Determination of the claimant's family status is governed by the laws of California, which is the state where the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345 (2004); POMS GN 00305.170.

The claimant has filed two applications for widow's benefits as the surviving divorced spouse of the wage earner. The first application was filed on October 20, 1994. This application was denied on January 12, 1995, because the claimant had not provided proof of her divorce from the wage earner. SSA informed the claimant that, if she disagreed with this denial determination, she had a right to appeal within sixty days of receipt of the decision. SSA also informed the claimant that she had a right to file a new application at any time, instead of appealing. However, if she filed a new application, she might lose some benefits or not qualify for benefits, and SSA could deny a new application using the denial determination, if the facts and issues were the same. The claimant did not appeal the initial determination.

Eight years later, on August 22, 2003, the claimant filed a second application for widow's benefits. The claimant asserted she retained the services of an attorney in Mexico, to file a divorce suit in Tijuana, Baja California, Mexico. The claimant furnished a document entitled "DIVORCE" and dated May 24, 1969. This document states that the claimant signed all of the necessary documents to file a divorce suit, by power of attorney, and that "final decree" of divorce would be obtained within a reasonable time and would be recorded in the State of Tlaxcala, Mexico. The document served as a receipt for the $80.00 the claimant paid to have the divorce processed by Tomas A~, an attorney. Mr. A~ signed the document over the title of Treasurer. The claimant asserted that she contacted the registrar in Tijuana, Mexico, to inquire about her divorce from the wage earner and, apparently, was told that no divorce proceedings had been filed. She also contacted another attorney, Mr. Fidel H~, in Mexico, who informed her that her former attorney had since died and no records were available. Mr. H~ stated that the copy of the "DIVORCE" document did not contain a seal and that the "receipt was not of the type he would furnish himself." There is no evidence to indicate that a divorce decree or judgment ever was entered in the State of Tlaxacala or any other jurisdiction. When a claimant does not appeal an initial denial determination, such determination becomes final and binding (doctrine of res judicata). 20 C.F.R. § 404.905 (2004); Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985). However, if a claimant submits new facts or evidence, the doctrine of res judicata will not apply and SSA will adjudicate the second application and give the claimant the right to appeal any aspect of the new determination. POMS GN 03101.160; GN 04040.010C. Here, the claimant has submitted new facts and evidence regarding her divorce from the wage earner; therefore, the doctrine of res judicata does not apply and SSA can adjudicate the second application in the usual manner.

The claimant had the burden of proving that she had been divorced from the wage earner. 20 C.F.R. § 404.336 (2004). Because the claimant's divorce proceeding apparently was never properly brought or acted upon in a Mexican court, her "divorce" was void on its face and, therefore, had no legal effect. See Rudnick v. Rudnick, 280 P.2d 96, 101 (Cal.App. 4 Dist. 1955) (experts on Mexican law testified that "fictitious" divorce decree was void on its face; a search of Mexican court records revealed that no divorce action had been brought or acted upon).

Even if this divorce proceeding had been properly adjudicated under Mexican law, such divorce was a nullity because neither the claimant nor the wage earner were domiciled in Mexico at the time. See duQuesnay v. Henderson, 74 P.2d 294, 295 (Cal.App. 2 Dist. 1937) (domicile is necessary to give court jurisdiction over subject matter of divorce; therefore, Mexican divorce decree was a "nullity" because of lack of jurisdiction over divorce of individuals domiciled in California); see also CAL. FAM. CODE § 2091 (Uniform Divorce Recognition Act). In this case, the claimant and the wage earner were domiciled in Arizona at the time of their purported Mexican "divorce," but the result would be the same under Arizona law. See Unruh v. Industrial Commission, 301 P.2d 1029, 1031 (Ariz. 1956) (Mexican court did not have the "slightest semblance of jurisdiction" to adjudicate a divorce of individuals domiciled in Arizona; therefore, Mexican divorce was "void"). Jurisdiction of the Mexican courts cannot be conferred by consent of the parties. See Kegley v. Kegley, 60 P.2d 482, 484 (Cal.App. 3 Dist. 1936) (subject matter jurisdiction over divorce of parties whose domicile was in California cannot be conferred to Mexican court by estoppel or mutual consent of the parties). Agency policy is consistent with California and Arizona law and supports the conclusion that such a divorce would be a nullity. POMS GN 00305.170 ("A divorce granted in a jurisdiction in which neither party is domiciled is not valid.").

Although the claimant was not validly divorced from the wage earner, she is estopped from challenging the validity of her divorce from the wage earner because she subsequently married. See Unruh, 301 P.2d at 1031 (the validity of a divorce cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation by a spouse who takes advantage of such decree by remarrying); Pierson v. Anderson, 70 Cal. Rptr. 266, 271 (1997) (if a husband or wife enters into a subsequent marriage during the lifetime of the estranged spouse, he or she will be estopped from claiming the rights of a lawful spouse). These cases are consistent with Agency policy, which indicates that an individual will be estopped from denying the validity of a divorce if that individual "remarried after the divorce." POMS GN 00305.175; see also POMS PR 06405.006 (especially PR 86-026-applying California law and concluding that the doctrine of estoppel applies whenever the spouse to be estopped has sought to benefit from a divorce by remarriage; and PR 85-028 (applying California law and concluding that the California courts would extend the application of the doctrine of estoppel to cover cases where the affected parties have acted in reliance upon a colorable, but bogus, Mexican divorce decree).

Based on the foregoing, the claimant is the wage earner's widow but would not be entitled to widow's benefits on his record because of her remarriage. However, because claimant would be estopped from asserting the invalidity of her divorce from the wage earner and would be precluded from being considered the wage earner's spouse, SSA should consider the claimant's divorce from the wage earner a final divorce and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits. POMS GN 00305.180A.3, which references GN 00305.180C.2.

Finding the claimant eligible for widow's benefits as the wage earner's surviving divorced benefits would not make Guadalupe M~ ineligible for widow's benefits on the wage earner's record. Guadalupe M~, to whom the wage earner was "married" at the time of his death, is currently receiving Title II benefits as his widow. Under California law, the wage earner's marriage to Guadalupe M~ is presumed valid. V~ v. Superior Court of Los Angeles County, 88 Cal. Rptr. 281, 283 (1970) ("When a person has entered into successive marriages, a presumption arises in favor of the validity of the second marriage"); see also POMS GN ATL00305.030 (Presumption of Validity of the Last Marriage). In such cases, the burden is on the individual attacking the validity of the second marriage to overcome the presumption. V~, 88 Cal. Rptr. at 283. However, in this case, the claimant is not attacking the validity of the wage earner's marriage to Guadalupe M~.

Also, California recognizes the doctrine of "putative spouse," that is, if either party or both parties believed in good faith that a marriage is valid, the court shall declare the party or parties to have the status of a putative spouse and (each) is a legal spouse for purposes of determining property rights. CAL. FAM. CODE § 2251; see Smith v. Garvin, 207 Cal. Rptr. 561, 567-571 (1984). This good faith belief must be objectively reasonable. Depasse v. Harris, 118 Cal. Rptr. 2d 143, 156 (2002). The putative spouse doctrine has been relied upon to find a claimant is entitled to Social Security benefits. Aubrey v. Folsom, 151 F.Supp. 836, 840 (N.D.Cal. 1957) (surviving putative spouse in California qualifies as a widow and is entitled to mother's insurance benefits); see also Knott v. Barnhart, 269 F.Supp.2d 1228, 1235 (E.D.Cal. 2003) (claimant who had her marriage annulled after she discovered "husband's" previous marriage had not been dissolved was his putative spouse and was entitled to benefits as his divorced spouse). California's putative spouse doctrine is consistent with the Social Security Act's provision by which an individual may be "deemed" a wage earner's spouse if the individual, in good faith, went through a marriage ceremony with the wage earner that would have resulted in a valid marriage except for a legal impediment. 42 U.S.C. § 416(h)(1)(B)(i); 20 C.F.R. § 404.346 (2004). Based thereon, if Guadalupe M~ had a good faith belief that she was the wage earner's legal spouse, she is his putative spouse and is entitled to benefits as his widow.

The “nunc pro tunc” language in the final judgment of divorce in this case appears to be valid because the applicable California statute expressly authorized the court to issue a final decree of dissolution effective nunc pro tunc where a final decree had not been entered because of mistake, negligence, or inadvertence. However, because the final judgment was not entered, the claimant has not acquired the status of a divorced spouse.

QUESTION

You asked for a determination of “the legality of the nunc pro tunc action by the judge from different county than the one which issued the interlocutory decree” for purposes of a claim for divorced spouse's insurance benefits.

ANSWER

The “nunc pro tunc” language in the final judgment appears to be valid because the applicable California statute expressly authorized the court to issue a final decree of dissolution effective nunc pro tunc where a final decree had not been entered because of mistake, negligence, or inadvertence. However, because Claimant's final judgment was not entered, Claimant has not acquired the status of a divorced spouse.

SUMMARY OF EVIDENCE

Claimant and the wage earner (formerly known as George H. C~) were married in Nevada on September 17, 1955. On December 7, 1959, Claimant commenced an action for divorce in Civil No. 31863 in the Superior Court of the State of California, County of Marin. On October 24, 1960, the court entered an interlocutory decree of dissolution. The court's custodian of records has certified that Civil No. 31863 does not contain any record of a final judgment and that the last docket entry reflects only the interlocutory decree entered October 24, 1960.

The only judgment that the Social Security Administration (SSA) could locate was provided by the wage earner. The judgment evidences that on February 13, 1980, the court in Civil No. 31863 issued a Final Judgment of Dissolution that “further ordered that this final judgment be entered nunc pro tunc as of 10/26/61.” While the judgment bears a “Filed” stamp indicating that the judgment was filed in court on February 15, 1980, the judgment does not bear an “Entered” stamp that would indicate that the judgment had been entered in the court's judgment book. Nonetheless, a copy of the judgment was recorded with the State of California Department of Health Services, Office of State Registrar.

ANALYSIS

We assess the court's Final Judgment of Dissolution according to the law that was in effect when the judgment was issued. See Cal. Fam. Code § 4 (1994) (concerning the effective date of California's Family Law Code).

Prior to July 1, 1984, California employed a two-tiered system of judgments in divorce actions. See generally B.F. Witkin, Summary of California Law, Vol. 11, Husband and Wife, §§ 155-165 (9th ed. 1990). First, an interlocutory decree of dissolution would be entered. See former Cal. Civ. Code § 4512 (1983). The interlocutory decree did not operate to dissolve the marriage but merely constituted a judicial declaration that the parties were entitled to seek dissolution. Riddell v. Guggenheim, 281 F.2d 836, 842-843 (9th Cir. 1960). Upon expiration of a statutory “cooling off” period, the court then could issue a final judgment of dissolution. See former Cal. Civ. Code § 4514 (1983). Upon entry, the final judgment dissolved the marriage. See Riddell v. Guggenheim, 281 F.2d at 843 (“dissolution occurs only upon entry of the final decree”) (citations omitted); see also Cal. Civ. Proc. Code § 664 (1987) (“In no case is a judgment effectual for any purpose until entered”).

Where the statutory “cooling off” period had elapsed and no final decree had issued, however, the court was authorized to issue a final decree effective nunc pro tunc as of the date when the decree first could have issued (i.e., upon expiration of the waiting period). See former Cal. Civ. Code § 4515 (1983). The main purpose of the provision was to empower courts to validate otherwise void marriages and thereby relieve individuals from bigamy which may have occurred through mere oversight or neglect in not obtaining entry of a final decree. In Re Estate Of Casimir, 97 Cal. Rptr. 623, 628 (1971) (citation omitted). Such a decree could issue only upon a showing of mistake, negligence, or inadvertence, and only upon the court's own motion or motion of either party. See former Cal. Civ. Code § 4515 (1983).

The final decree in this case did not issue until 1980, apparently because of mistake, negligence, or inadvertence of the parties. See, e.g., Nemer v. Nemer, 254 P.2d 661, 663 (1953) (court had power to enter nunc pro tunc final judgment where judgment had not been entered because of negligence and inadvertence given husband's reliance on wife's attorney to obtain final judgment). Accordingly, the court appears to have acted within its authority when it issued its judgment and ordered that the judgment be entered nunc pro tunc. The intended date of dissolution (i.e., October 26, 1961) satisfies the statutory waiting period whether the period was one-year or six-months. If the judgment otherwise were effective, then, the date of dissolution would be October 26, 1961.

The court's custodian of records, however, certified that the judgment has not been entered in Civil No. 31863. The fact that the judgment has not been entered in the case strongly suggests that the judgment has not been entered in the court's judgment book. Under California law, marital dissolution occurs only upon entry of a final judgment. See former Cal. Civ. Code § 4514 (1983); Riddell v. Guggenheim, 281 F.2d at 842-843. See also Cal. Fam. Code § 2346 (1994) (to the same effect under the current statute). Thus, Claimant cannot rely on the judgment to establish her status as a divorced spouse unless she demonstrates that the judgment has been duly entered in the court's judgment book. See generally Thomas v. Barnhart, 278 F.3d 948, 954-55 (9th Cir. 2002) (claimant's burden to make out prima facie case); 20 C.F.R. § 404.704 (2002).

CONCLUSION

Claimant has not shown that the Final Judgment was entered by the court from which it issued. Therefore, SSA cannot accord any effect to the judgment. Based on the evidence submitted, Claimant is not a “divorced spouse” of the wage earner for purposes of her claim for divorced spouse's benefits.

Janice L. W~

Regional Chief Counsel

By: ____________________

Dennis J. M~

Assistant Regional Counsel

To satisfy the "unmarried" requirement for entitlement to surviving divorced spouse's benefits on the NH's record, the claimant, age 60, divorced her last spouse whom she married prior to age 60. Two weeks after her divorce, she remarried her last spouse. Because the remarriage occurred after age 60, it can be disregarded for entitlement purposes. The Secretary cannot challenge the divorce and remarriage because it is suspected that the proceedings may have been commenced for the purpose of obtaining benefits. In this case, the divorce and remarriage meet state requirements. Since SSA was not a party to the divorce, the Agency cannot raise a challenge even if there were some evidence of fraud. (H~ , James, - RAIV[S~] to ARC, Progs,

The wage earner, James M. H~, and the claimant, Barbara L. F~, were married in 1947. The marriage was terminated by divorce in 1959. After three intervening marriages, Ms. F~ married Bobby Joe M~ in 1970. Mr. H~ died in 1982 while domiciled in California. Ms. F~ attained age 60 on March 21, 1989. On September 16, 1989 the Superior Court of California, Fresno County, issued a final judgment of divorce terminating the marriage between Ms. F~ and Mr. M~ effective November 9, 1989. Ms. F~ and Mr. M~ remarried on November 21, 1989. Ms. F~ filed an application for benefits as the surviving divorced wife of Mr. H~ on March 22, 1990.

As relevant here, in order to be eligible for widow's benefits as a surviving divorced spouse, the claimant must be "unmarried." You recognize that if Ms. F~'s 1989 divorce is valid her claim should be allowed despite her subsequent remarriage, which occurred after she reached age 60. Section 202Ie) (3) (A) of the Social Security Act, 42 U.S.C. 402(e) (3) (A) ; 20 C.F.R. 404.336(e) (I) . Ms. F~'s quick remarriage to Mr. M~ suggests to you that she may have obtained the divorce in order to establish eligibility for social security benefits on Mr. H~'s account. You ask, therefore, whether this divorce could be "invalidated by a showing that the proceedings were begun for the purpose of manipulating Ms. F~'s Social Security benefit rights."

The first point to be made is that even if your suspicion that Ms. F~ secured the divorce solely to qualify for widow's benefits is correct, this would not necessarily be a reason for denying her claim. In the business context, courts have held that "It]he social security laws, like the tax laws, do not prohibit people from arranging their lives to come within their ambit." Scott v. Celebrezze, 241 F. Supp. 733, 737 (S.D.N.Y. 1965), citing Stark v. Flemming, 283 F.2d 410 (9th Cir. 1960) (per curiam); Dunlap v. Ribicoff, 207 F. Supp. 511 (D.Kan. 1962); Brannon v. Ribicoff, 200 F. Supp. 697 (D.Mont. 1961); accord Ramirez v. U.S., 514 F. Supp. 759, 764 (D.P.R. 1981); Markarian v. Califano, 473 F. Supp. 671, 674 (W.D.N.Y. 1979). The appellant in Stark v. Flemming, challenged SSA's determination that the corporation she established to facilitate her entitlement to social security benefits was a sham. In reversing the agency, the court observed that

there seems to have been proper adherence to the normal corporate routines. And it is difficult to understand how the corporate arrangement would not have to be respected by others than the Secretary. And we think he must respect it too.

283 F.2d at 410. Similarly here, SSA may not automatically challenge the divorce and remarriage just because it results in Ms. F~ securing benefits. It appears that the divorce decree and marriage certificate were obtained in accordance with procedures prescribed by the applicable state law.

The facially valid decree could still be attacked by one of the parties on grounds that it was fraudulently procured, i.e., that he or she was denied an opportunity to participate fully in the proceedings. See, e.g., In re Marriage of Baltins, 212 Cal.App.3d 66, 80-83, 260 Cal.Rptr. 403, 411-13 I1989) ; In re Marriage of Stevenot, 154 Cal.Ap. 3d 1051, 1068, 202 Cal.Rptr. 116, 128 (1984). However, since SSA was not a party to the proceedings, the agency lacks standing to raise such a challenge, even if there were some evidence of fraud, which there is not.l_/ Thus, unless either Ms. F~ or Mr. M~ expresses an inclination to attack the divorce judgment, and he or she is able to point to some evidence upon which such a challenge might legitimately be premised, there is no justification for denying or delaying the pending claim.

In Stark v. Flemming the court further noted that "[c]ongress could have provided that the motivation to obtain social security by organizing a corporation would defeat the end. It did not." 283 F.2d at 410. Congress might also, but has not, authorized the Secretary to question the motivation behind a marriage, divorce, or annulment, choosing instead to set an objective, easily administered standard which does not provide for a case-by-case inquiry into marital intent. As the Supreme Court has recognized, not only does this approach obviate the necessity for large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule[s] from the uncertainties and delays of administrative inquiry into the circumstances of their marriages.

Weinberger v. Salfi, 422 U.S. 779, 783, 95 S.Ct. 2457, 2475 (1975).

The Immigration and Naturalization Act is the only federal statute of which we are aware that mandates individualized determinations of the bona fides of an alleged marital relationship. This Act expressly authorizes case-by- case investigations for the purpose of determining whether an alien is married to an American citizen or permanent resident. See 8 U.S.C. 1154(b). Pursuant to this authority, the INS has adopted broad investigatory procedures to detect sham marriages entered into solely for the purpose of circumventing the immigration law. See 8 C.F.R. 103.2, 204.1(a) , 204.2 (a) .2_/

Our conclusion that you may not look behind the facially valid divorce and remarriage in this case, does not mean that the government is powerless to prevent individuals from taking advantage of the law regarding the entitlement of "unmarried" spouses to social security survivors benefits. if SSA (or the Inspector General's office which often looks into potential abuse situations in programs administered by this Department) determines that this case is representative of a significant, recurring problem, the Department could so advise Congress and propose legislation to plug the statutory loophole. Section 202(e) (3) (A) of the Social Security Act currently provides that if a widow or surviving divorced wife marries after attaining age 60, the marriage shall be deemed not to have occurred for purposes of entitlement to benefits on the wage earner's account. The statute could be amended so that this exception to the general rule that a remarried spouse is not entitled to secondary benefits applies only if following the termination of his or her marriage to the wage earner, the claimant was not party to an intervening marriage contracted prior to age 60 which lasted for a specified period (e.g., 10 years). See generally Bowen v. Owens, 476 U.S. 340, 106 S.Ct. 1881 (1986) (recognizing that Congress is not constitutionally obligated to provide benefits to any remarried secondary beneficiary). The rationale for this amendment would be that a longterm, intervening marriage negates or diminishes the claimant's legitimate expectation of financial dependency upon the previous spouse. Another alternative would be to make the post-60 remarriage exception inapplicable where, after reaching age 60, the claimant remarries an individual (other than the wage earner) to whom he or she was previously married prior to age 60.3_/ Such objective refinements to the remarriage exception fall within congressional authority to enact prophylactic rules while obviating the need for SSA to make individualized determinations.

1_/ Examples of intrinsic fraud are: "Concealment by one party of the existence of a community asset, or prevention of participation in the proceeding by the other party ....

Failure to give notice of the action to the other party, or proceeding to obtain a judgment without the knowledge of the other party, while reconciled with him or her.

Convincing the other party not to obtain counsel because the matter is not going to proceed.

[And] [c]ompletion of the dissolution after having represented to the other party that it would not proceed without further notice." In re Marriage of Stevenot, supra, 154 Cal.App.3d at 1069, 202 Cal.Rptr. at 116. Documentation in the record here indicates that both Ms. F~ and Mr. M~ were aware of the proceedings and were actively represented by their respective attorneys.

2_/ Notwithstanding this statutory and regulatory authority, the courts have indicated that attempts by the INS (and, by extension, any government agency) to look behind a legally valid marriage or to test a marital relationship by supposed societal norms based on life-style or amount of time spent together could be viewed as a constitutionally proscribed invasion of the right to privacy. See, e.g., Bark v. I.N.S., 511 F.2d 1200, 1201 (9th Cir. 1975); accord Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1979); All v. I.N.S., 661 F. Supp. 1234 (D. Mass. t986) ;Chan v. Bell, 464 F. Supp. 125, 130 (D. D.C. 1978). Absent the statutory and regulatory authority that arguably supported the INS investigations disapproved in these cases, similar intrusions by SSA into areas of essentially private family relations would apparently be improper.

3_/ Ms. F~ would be disqualified under either proposal based on her 19-year marriage to Mr. M~.

DIVORCE — Validity of Divorce Obtained — California Under California law, and consistent with the constitutional principle of full faith and credit, the validity of a divorce decree is determined by the laws of the state in which it was obtained. A divorce decree is not entitled to obligatory recognition and enforcement under the full faith and credit clause of the constitution unless it is rendered by a court having jurisdiction over the subject matter and the parties. (J~, John; RA IX; S~; March 11, 1986)

DIVORCE — California

In a divorce action, due process requires a method of notice reasonably calculated to afford the interested parties the opportunity to appear and be heard. If the means of notification is not designed to apprise those concerned, the court entertaining the action does not acquire personal Jurisdiction and any resulting decree lacks binding effect. (J~, John; RA IX; S~; March 11, 1986).

Where the plaintiff in a divorce action has made a genuine effort to locate the defendant, service by mail is an effective means of notice even if the notice is never actually received. (J~, John; RA IX; S~; March 11, 1986).

For purposes of a divorce action, personal jurisdiction based on domicile attaches only when the party's physical residence is combined with a genuine intention to remain indefinitely within the state. (J~, John; RA IX; S~; March 11, 1986)

DIVORCE — Rights of prior spouse terminated by estoppel to Assert Invalidity of Divorce.

A divorce judgment void for want of jurisdiction may be vacated at any time unless the equitable defenses of estoppel or laches apply. (J~, John; RA IX; S~; March 11, 1986)

The wage earner, John J~, married Maria P~ in Ryczywol, Poland on July 11, 1940. Several months later, he left Poland for the United States. Maria, then as now a Polish citizen, stayed in Poland. Mr. J~ was inducted into the United States Army in 1942, and remained in the service after the war. During 1948 he was stationed in California.

On July 16, 1948 Mr. J~ filed a complaint for divorce in a Nevada state court, alleging that he had been a bona fide resident of Nevada for more than six weeks. In an accompanying affidavit, Mr. J~ averred that he had attempted to locate Maria through correspondence, as well as other unspecified means, but had been unsuccessful. He further stated that Maria's last "address" to his knowledge was Rozgona, Poland. On the strength of this affidavit, the Nevada court ordered publication of a summons in the Reno Evening Gazette, finding that this was "the newspaper most likely to give notice to defendant [Maria] of the pendency of the suit." The court also directed that copies of the summons and complaint were to be mailed to Maria, addressed only to Rosgona [sic], Poland. Maria has since stated that she did not receive the summons and complaint and had no knowledge of the divorce proceedings until 1950.

A divorce decree dissolving the marriage was issued on September 14, 1948. On the same day, Mr. J~ married Ruth H~. Shortly thereafter Mr. J~ and Ruth returned to his military base in California.

Mr. J~ applied for retirement insurance benefits on April 4, 1978. Ruth submitted an application for wife's benefits on January 10, 1983. On October 11, 1983 Maria also filed for wife's benefits, alleging that her marriage to Mr. J~ was never legally ended. You have asked for our assistance in determining the validity of the Nevada divorce for purposes of adjudicating Maria's claim.

Pursuant to section 216(h) (1) (A) of the Social Security Act, the determination of whether the wage earner and Maria remained married, notwithstanding the Nevada divorce decree, is to be based on the laws of the state in which Mr. J~ was domiciled at the time of Maria's application. You have found that the state of domicile in this case is California. Therefore, California law governs the outcome.

Under California law, and consistent with the constitutional principle of full faith and credit, the validity of a divorce decree is determined by the laws of the state in which it was obtained. In Re Estate of Grimble, 42 Cal.App.3d 741, 117 Cal.Rptr. 125 (1974); Jones v. Jones, 182 Cal.App.2d 80, 5 Cal.Rptr. 803 (1960); see Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092 (1945). However, "[a] divorce decree is not entitled to obligatory recognition and enforcement under the full faith and credit clause of the federal Constitution unless it is rendered by a court having jurisdiction over the Subject matter and the parties" (emphasis in original). 6 Witkin, Summary of California Law, "Husband and Wife" 71 (8th ed.). Where jurisdiction is in doubt, a California court may reexamine the jurisdictional bases asserted by the court of its sister state. Leff v. Leff, 25 Cal.App.3d 630, 102 Cal.Rptr. 195 (1972), citing Williams v. North Carolina, cited above. GC opinion re Nathan N. Carroll, May 12, 1978.1/ In our opinion a reexamination of the circumstances of this case would result in a finding that the Nevada court had no jurisdiction and that, consequently, the divorce decree is invalid.

In a divorce action, as in any judicial proceeding, due process requires a method of notice reasonably calculated to afford the interested parties the opportunity to appear and be heard. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339 (1940). If the means of notification used is not designed to apprise those concerned of the pendency of an action, the court entertaining that action does not acquire personal jurisdiction and any resulting decree lacks binding effect. GC opinion re Harold Eidelbus, June 13, 1984, citing Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 70 S.Ct. 652 (1950). A decree of divorce rendered by a court devoid of jurisdiction for want of adequate notice can be impeached collaterally even when the record purports to show jurisdiction. Williams v. North Carolina, cited above. The notification procedures in this case did not satisfy minimal constitutional requirements.

The Reno Evening Gazette, an English language newspaper of limited circulation, was not an appropriate vehicle for conveying notice of the divorce proceedings to Maria. Service of process by publication has long been constitutionally suspect. Mullane v. Central Hanover Bank and Trust Company, cited above. Publication in this local paper was plainly not an effective means of notifying the Polish-speaking defendant, Maria, who had never been to the United States, let alone Reno, Nevada.

Nor was the deficient notification cured by the expedient of mailing a copy of the summons and complaint to Maria, addressed only to the Polish town of Rozgona. Service by mail is not inadequate per se, but it will suffice only when preceded by a diligent attempt to ascertain the exact whereabouts of the defendant. Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 150 Cal. Rptr. 855 (1978); accord Mullane v. Central Hanover Bank and Trust Company, cited above. In this case there was no factual showing that Mr. J~ had made a good faith effort to locate his wife. The mere recitation in the affidavit that unspecified attempts to locate Maria were unsuccessful is not sufficient, nor is facial compliance with the Nevada statute concerning process. Donel, Inc. v. Badalian, cited above, citing Stern v. Judson, 163 Cal. 726, 127 P.. 38 (1912). Certainly, there is no indication that Maria tried to conceal her place of residence or otherwise avoid service of process. Under these circumstances, the California courts would conclude that notice was inadequate, that Maria was not given a fair opportunity to contest the divorce, and that, therefore, the Nevada court lacked personal jurisdiction, rendering the divorce decree invalid.2/

The Nevada decree is also vulnerable on other and independent grounds:

"It is a well established rule that jurisdiction to grant a divorce rests upon bona fide domicile. When neither party is domiciled within the state, no divorce can validly be granted and all proceedings, as well as the judgment, are void. Stated another way, a decree of divorce rendered in one state may be impeached and denied recognition in another upon the ground that neither of the parties had domicile at the divorce forum, and this is true notwithstanding the recital in the decree from the other state of the jurisdictional fact of domicile or residence. See: Beale, Conflict of Laws, vol. 1, 74.3, 111.1 and cases cited therein; Goodrich, Conflict of Laws, 2nd Ed. 123; Rest., Conflict of Laws, 111; 9 Cal. Jur. 815, 817."

Johnson v. Johnson, 259 Cal.App.2d 139 66 Cal. Rptr. 172, 176 (1968), quoting Crouch v. Crouch, 28 Cal.2d 243, 169 P.2d 897, 900 (1946); accord Williams v. North Carolina, cited above; Latterner v. Latterner, 51 Nev. 285, 274 P. 194 (1929) (jurisdiction to award divorce decree dependent upon bona fide residence). In reviewing a collateral attack on jurisdiction due to lack of domicile, a court may consider evidence apart from the record, including evidence of extrinsic fraud. GC opinion re Nathan N. Carroll, cited above. The evidence on file in this case warrants a finding that Mr. J~ was never actually domiciled in Nevada. ..

Recent statements by Mr. J~ indicate that he did not even satisfy the minimal residential requirements of Nevada. Then, as now, Nevada required the plaintiff in a divorce action to have resided in the state for at least six weeks prior to filing suit. NCL 9460; accord Nevada Revised Statutes (NRS) 125.020. The complaint in this case alleges that Mr. J~ had resided in Nevada for more than six weeks prior to commencement of the action on July 16, 1948. Mr. J~ statements to SSA belie this allegation. On December 20, 1984 he stated that he did not begin his residence in Nevada until July 15, 1948, just one day before the com- plaint was filed. It is also noteworthy that he was only able to stay in Nevada by drawing on 90 days of accumulated military leave. Had he come to Nevada six weeks prior to July 16, 1948, this leave would have been exhausted by late August or the first week of September at the latest. However, the record shows that he was in Nevada through September 14, 1948. Presented with this evidence demonstrating non-compliance with the six-week residency requirement, the California courts would not honor the Nevada decree. See Johnson v. Johnson, cited above.

Even if the statutory residency requirements had been met, the decree would not be valid because jurisdiction attaches only when physical residence is combined with a genuine intention to remain indefinitely within the state. E.g., Presson v. Presson, 38 Nev. 203, 147 P. 1081 (1915). There is no evidence, aside from the bare allegation in the complaint, that Mr. J~ ever really considered staying in Nevada beyond the minimum time required to process his divorce. In a statement dated April 5, 1985, he indicated that he thought of Maryland as his state of residence until 1949. In addition, nothing in the file indicates that Mr. J~ lingered in Nevada after the divorce for so much as 24 hours, or that he ever returned to that state to resume residence. We believe the California courts would refuse to uphold the Nevada decree on the basis of the very suspect record with respect to residence and domicile.

Finally, you inquire whether Maria is estopped from con- testing the divorce because, although she became aware of the decree in 1950, she took no action to have it set aside. A divorce judgment void for want of jurisdiction may be vacated at any time unless the equitable defenses of estoppel or laches apply. 24 Am. Jur.2d, "Divorce and Separation" 486. Since there is no evidence that Maria relied upon the divorce to her advantage (e.g., by remarrying or accepting alimony), she would not be estopped from challenging the decree. Id. at 488.

Nor could laches be invoked to forestall an attack on the divorce. Laches consists of failure by the plaintiff to assert her rights in a timely fashion, resulting in some detriment or prejudice to the defendant. See, e.g., Rouse v. Underwood, 242 Cal.App.2d 316, 51 Cal. Rptr. 437 (1966). The period of delay in this case was extreme, approximately 35 years having elapsed from the date Maria learned of the divorce until she alleged its invalidity in connection with her application for wife's benefits.3/ However, the delay was not prejudicial to Mr. J~. The primary action he took in reliance upon the divorce was his attempted marriage to Ruth on the same day the decree was handed down. Where, as here, remarriage occurred "soon after the divorce and at a time when the other party to the decree could not have been expected to seek relief, . . the delay does not cause sufficient injury to warrant the application of the doctrine of laches." 24 Am. Jur.2d, "Divorce and Separation," at 492. Moreover, laches is an equitable defense, sustainable only when appropriate under the particular circumstances of the case at hand. An equity court reviewing the facts here would be strongly influenced by the disabilities resulting from Maria's residence in Poland. Her presumptive difficulty in comprehending and gaining access to the American legal system would weigh heavily in favor of allowing her to challenge the divorce even at this late date.

For these reasons, we think that the California courts would permit Maria to attack the decree and that such an attack would succeed because the Nevada court lacked personal and subject matter jurisdiction.

1/ Note, however, that a collateral attack on jurisdictional grounds is not permissible where the defendant participated in the divorce proceedings, was accorded a full opportunity to contest jurisdictional issues, and where a collateral attack would not be allowed in the courts of the state in which the decree was issued. Aldabe v. Aldabe, 209 Cal.App.2d 453, 26 Cal. Rptr. 208 (1962). Collateral attack would be available here since Maria did not appear in the divorce proceedings.

2/ Our conclusion that the court did not acquire personal jurisdiction is not based on Maria's failure to actually receive notification. Where the plaintiff has made a genuine effort to locate the defendant, service by mail is effective even if notice is never received. GC opinion re. Andrea Cardinale, D-15909, December 13, 1972, citing Hubert v. Hubert, 78 Cal.App.2d 498, 178 P.2d 15 (1947).

3/ The file does contain a memorandum, dated May 29, 1950, drafted by a United States military officer and addressed to the "Air Attache, U.S. Embassy, Warsaw, Poland," which suggests that Maria may have attempted to dispute the divorce soon after she learned of the judgment.