Recent Delaware case law now suggests that jurisdicition over a divorce can be established by either domicile or by voluntarily invoking it by appearance in the foreign court. Therefore, under Delaware law, there are now grounds other than domicile upon which the validity of a foreign divorce decree can be based. A Delaware court would now be more likely to recognize a foreign divorce decree as valid, particularly based upon the specific facts of this case. Foreign divorce decrees will still not be recognized as valid in Delaware when neither spouse personally appeared or had any personal contact with the foreign jurisdiction. However, in this case, one spouse personally appeared in the foreign court and the other spouse voluntarily appeared through an attorney.

You have requested an opinion on whether the State of Delaware would recognize the validity of the Mexican divorce between Barbara K~ and her first husband, William S~. You want to know whether Barbara can be considered the legal spouse of David C. K~, the number holder, thereby entitling her to wife's insurance benefits on his record.

For the reasons explained below, we conclude that a Delaware court would probably recognize the Mexican divorce as valid, and that Barbara could accordingly qualify for benefits as the number holder's spouse, provided she is otherwise qualified. We also believe that Delaware would recognize the divorce as valid based on equitable considerations. In the alternative, regardless of state law, Barbara may also qualify for benefits as the number holder's wife based upon a deemed valid marriage.

II. FACTS

As we understand the facts, Barbara and William were married in Delaware on April 12, 1952. They were divorced in Mexico on February 29, 1968, while living separately in Delaware. According to the Mexican divorce decree, Barbara filed for divorce against William on the grounds of incompatibility of temperaments. The divorce decree states that Barbara personally appeared before the Mexican court and expressly submitted to the court's jurisdiction. The divorce decree also states that William did not personally appear at the proceedings, but that an attorney appeared on his behalf. The attorney filed a consenting answer, expressly submitted William to the court's jurisdiction, confessed the complaint, and joined in the prayer for divorce. The divorce decree further provided that the two children of the marriage would continue to remain under Barbara's custody.

Barbara admits that she did not establish residency in Mexico when she obtained the divorce. She stated that she and William had shared the same Delaware attorney and that this attorney had a contact in Mexico, who made all the arrangements for them. Barbara claims that William wanted a quick divorce so that he could marry a younger woman. Barbara acknowledged that she flew into Mexico on the morning of the divorce and that she flew out later that night. She admits that she did not stay in any house or hotel while in Mexico.

On May 2, 1968, following the divorce, Barbara married the number holder in Wilmington, Delaware. She is still married to him. It is also our understanding that William got married after the divorce in September 1968 and that he died in December 1993.

In April 2003, the number holder filed an application for retirement benefits. He indicated in his application that he was currently married to Barbara. On May 2, 2003, Barbara filed an application for wife's insurance benefits on the number holder's record. In her application, Barbara acknowledged her previous marriage to William and her divorce from him in Mexico on February 29, 1968.

III. DISCUSSION

Under the Social Security Act, a wife of an insured individual is entitled to wife's insurance benefits if, among other requirements, she and the insured individual were validly married under State law at the time she applied for the benefits. Social Security Act §§ 202(b), 216(h)(1)(A)(i), 2 U.S.C. §§ 402(b), 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.330, .345 (2003). In this case, because Barbara and the number holder were married in Delaware, and because the number holder's permanent home is in Delaware, Barbara's marital status must be evaluated under Delaware law.

A Delaware court is not required to recognize a foreign divorce decree; however, it may choose to do so under the principles of comity. See Del. Code tit. 13 ' 1521 (2002) (providing that a Delaware court has the authority to give effect to a ivorce decree of a foreign country as may be justified by the rules of international comity). “Comity is the courtesy or mutual convenience one state will give to the decrees of a foreign country.” Howard v. Howard, No. CS89-3723, 1990 WL 143876, at * 1 (Del. Super. Ct. January 31, 1990). Comity permits the state to recognize foreign decrees provided they are consistent with fundamental principles of justice. Id.

In Delaware, a key element in deciding whether to enforce a foreign divorce decree is whether the foreign country had jurisdiction over the divorce. Williams v. Williams, 1993 WL 331874, at * 2 (Del. Fam. Ct. June 11, 1993). Delaware has long recognized that domicile of at least one of the parties to a divorce is required for the court to have jurisdiction. See Ainscow v. Alexander, 39 A.2d 54 (Del. Super Ct. 1944). However, recent case law in Delaware now suggests that jurisdiction can be established by either domicile or by voluntarily invoking it by appearance in the foreign court. Id.; Pascavage v. Pascavage, No. 923-86, 1994 WL 837452, at * 3-4 (Del. Fam. Ct. August 14, 1994), aff'd sub nom, Pascavage v. Aperio, 655 A.2d 1225 (Del. 995). See also Mitchell v. DiAngelo, 787 A.2d 715, 719 (Del. Ch. 2001), aff'd 787 A.2d 100 (Del. 001) (noting that since cases like Ainscow, there has been a “radical and ubiquitous change in public attitude toward divorce in the last half century”).

We note that there is a prior OGC precedential opinion on this issue regarding Delaware acceptance of foreign divorce decrees. See Program Operations Manual System (POMS) PR 06210.000, dated September 28, 1988 (Recognition of a Mexican Divorce in Delaware). In the prior opinion, we concluded that since there was no clear Delaware case on point, Delaware would not recognize a Mexican divorce as valid when neither party to the divorce was domiciled in Mexico at the time the divorce was granted. We further noted that the factual situation in that case was unclear, including the fact that one party to the divorce denied that she was given any advance notice of the divorce even though the divorce decree indicated otherwise. However, as stated above, we believe that since the date of the prior opinion, Delaware law has changed in that there are grounds other than domicile upon which the validity of a foreign divorce decree can be based and, therefore, a court would now be more likely to recognize a foreign divorce decree as valid, particularly based upon the specific facts of this case.

Foreign divorce decrees will still not be recognized as valid in Delaware when neither spouse personally appeared or had any personal contact with the foreign jurisdiction. Williams, 1993 WL 331874 at * 3 (citing to Perrin v. Perrin, 408 F.2d 107 (3d Cir. 1969). But if one spouse personally appeared in the foreign court and the other spouse voluntarily appeared through an attorney, this may be enough to establish that the foreign court had jurisdiction. See Perrin, 408 F.2d at 111 (Third Circuit held that a bilateral Mexican divorce decree was entitled to recognition, where a wife was personally present in Mexico and the husband appeared by counsel and filed a consenting answer).

Whether recognition will be given to a foreign divorce decree depends on the facts of the particular case. A Delaware court will carefully scrutinize the facts before finding that a spouse entered a “voluntary appearance” in a foreign court for purposes of jurisdiction. A foreign divorce decree will not be recognized if it was obtained by a procedure which denied due process of law, was obtained by fraud, or where the divorce offended the public policy of the state in which recognition is sought. See Williams, 1993 WL 331874 at * 5 (court declared Guatemalan divorce decree invalid where evidence showed that it was procured by fraud and undue influence of husband, and where neither wife nor husband was domiciled in Guatemala or appeared in that jurisdiction); see also Pascavage, 1994 WL 837452, at * 7-8 (court refused to recognize a Panamanian divorce decree as valid because wife did not receive proper notice of divorce action due to husband's fraudulent conduct and, therefore, she could not be considered to have voluntarily entered her appearance in the Panamanian courts).

In this case, it is clear that neither Barbara nor William established domicile in Mexico. William never appeared in Mexico and Barbara appeared only for the day, leaving at night. Thus, it is unlikely that their divorce would meet the domicile test for jurisdiction. But there is evidence that Barbara and William satisfied the second test for jurisdiction, namely that both parties voluntarily invoked the jurisdiction of the Mexican courts by entering an appearance.

Barbara admits that she personally appeared in Mexico for the divorce proceedings. The divorce decree states that she petitioned for the divorce and that she expressly submitted herself to the jurisdiction of the Mexican court. Likewise, although William did not personally appear in the Mexican court, he appeared in court by counsel. William's attorney filed a consenting answer on William's behalf and submitted William to the Mexican court's jurisdiction. There is no evidence that the appearance of either Barbara or William was not voluntary. Likewise, there is no indication that either of the parties was denied due process, that the divorce was obtained fraudulently or through undue influence, or that the divorce offended public policy. There is also no evidence that the divorce was ever challenged by either of the parties. Indeed, as noted above, both Barbara and William entered new marriages after the divorce. Accordingly, we believe that given recent case law and the particular facts of this case, a Delaware court would likely find that the Mexican court had jurisdiction to issue the bilateral divorce decree, and that it could be recognized as valid in the state.

We are also of the opinion that a Delaware court could consider the Mexican divorce valid based on equitable considerations. In Mitchell, 787 A.2d at 715, for example, the court concluded that a former wife was estopped from denying the validity of a divorce that was obtained over thirty years earlier, even though it was later discovered that the divorce was fraudulent. The court held that it would be fundamentally unfair if the former wife could benefit as a surviving spouse, given that she actively sought the divorce in 1968 and fully enjoyed the benefits of her divorced status. The court held that despite the fact that the divorce was void and a legal nullity, “equity and good conscience”dictated that the former couple is left where they put themselves and treated as though their marriage was dissolved in 1968. “There remains little if any interest in encouraging the resurrection of deceased marriages, even if pronounced dead by other tribunals whose processes are not completely consistent with our own.” Mitchell, 787 A.2d at 719 (quoting Kazin v. Kazin, 81 N.J. 85 (1979).

We realize that the factual situation in the present case is different from the Mitchell case. In particular, SSA was not party to the Mexican divorce. However, considering the circumstances here, which include the fact that the divorce in question was obtained thirty-five years ago, the fact that one party to the divorce is now deceased, and the fact that both parties apparently accepted the divorce as valid, as shown by their remarriages, we believe that a Delaware court would likely conclude that “equity and good conscience” would dictate that the Mexican divorce decree be recognized as valid and that there would be no value in “resurrecting” the deceased marriage between Barbara and William.

Lastly, we note that not with standing the above discussion of Delaware law, you should also consider whether Barbara could qualify for wife's insurance benefits based upon a deemed valid marriage. The Social Security Act and the regulations provide that if a claimant's relationship as the wife of the insured individual cannot be established under State law, the claimant may be eligible for benefits based upon a deemed valid marriage. Social Security Act § 216(h)(1)(B); 20 C.F.R. § 404.346 (2003). A claimant will be deemed to be the wife of the insured if, in good faith, she went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. 20 C.F.R. § 404.346(a).

We do not have sufficient knowledge of the specific facts regarding the marriage between Barbara and the number holder to conclude whether the requirements of a deemed marriage were met here. We note, however, that the Program Operations Manual System (POMS) specifically instructs that consideration of a deemed marriage be considered first, before determining the legality of a relationship under State law. POMS GN 00305.055C.1. Accordingly, although it appears from the facts of this case, that Delaware would likely recognize the Mexican divorce decree as valid, we suggest that it would be prudent for you to also determine whether a deemed valid marriage can be found here.

IV. CONCLUSION

For the reasons discussed above, it is our opinion that a Delaware court would likely recognize Barbara's Mexican divorce decree as valid, entitling her to wife's benefits on the number holder's record, provided she meets the other requirements for such benefits. We also believe, however, that regardless of State law, you should also consider whether Barbara may be entitled to wife's insurance benefits based upon the presence of a deemed valid marriage, as set forth in POMS GN 00305.055.

We hope that the above information has sufficiently answered your inquiry.

James A. W~

Regional Chief Counsel

By:

Kenneth D~

Assistant Regional Counsel

DIVORCE .... Validity of Divorce Obtained Outside of State

Domicile is generally recognized as a crucial jurisdiction over divorce proceedings. Delaware courts would not recognize a Mexican divorce as valid where neither party was domiciled there at the time the divorce was granted. S~ Betty W. - ~— RAlll (ARRASTIA) to RC, SSA 09/28/88 )

You have requested our opinion whether Delaware would recognize the validity of the Mexican divorce between Harold L~ and Betty S~ In brief, we believe that Delaware courts would not recognize the divorce as valid. Ms. S~ married Mr. L~ in 1951. On May 16, 1968, Mr. L~ obtained a Mexican divorce from Ms. S~, while both of them were domiciled in Delaware. Mr. L~ was in Mexico for ten days (Report of Contact May 24, 1988). Ms. S~ says that she "was not given advance notice of the divorce proceedings; she and Mr. L~ entered into a separation agreement in Delaware prior to the proceedings, and she subsequently received a copy of the divorce decree in the mail. She did not file a response or appear in court" (Report of Contact August 31, 1987). The divorce decree recites that an attorney entered an appearance on her behalf and answered the allegations of the complaint. Ms. S~ married David W. S~ on January 9, 1971. Mr. S~ died on August 10, 1987, and Ms. S~ has now applied for the lump sum death payment on his record.

As discussed in our memorandum to your office, "Validity of Second Marriage after Mexican Divorce under Delaware Law" (June 11, 1985) [copy attached], Delaware law provides little guidance regarding the validity of Mexican divorces. Our memorandum referenced two prior General Counsel opinions which discussed the validity under Delaware law of Mexican divorces in which both parties were Delaware domiciliaries, one party appeared personally, and the other was represented by an attorney. opinions noted the lack of any reported Delaware case law on point. The first opinion, "Alfred W. P~- ~ (May 6, 1966), nonetheless concluded that Delaware courts would not consider the divorce valid. 1_/ The second opinion, "John L~ D/W/E ~ (October 14, 1969), expressly declined to follow the first, noting that the pertinent statute authorized courts to "give such effect to a decree of . . . divorce by a court of a foreign country as may be justified the rules of international comity," see the current codification at Del. Code Ann. tit. ]3, § 1521 (1981), and therefore did not preclude Delaware courts from upholding foreign divorce decrees in appropriate circumstances.

The concept of comity, however, is not helpful in resolving the 'issue raised here, since it "is in large another way of stating that foreign law or rights will frequently be recognized and enforced rather than any basic explanation or reason for such enforcement." 15A C.J.S. Conflict of Laws § 3(3) (1967). Whether recognition will be given to a foreign divorce decree depends on the facts of the particular case. Public policy and morals may be considered, and it is exclusively for the courts of a particular state to determine whether recognition of the foreign decree will offend public policy and the morals of the state. 27B C.J.S. Divorce § 329 (1959). Absent any state law precedent on point, it is difficult to say how Delaware courts would apply the principles of comity in considering the foreign divorce decree at issue here. The L~ OGC opinion avoided having to decide the issue of the validity of the divorce by finding another basis for resolving the issue presented, i.e., on the basis of a "deemed" valid marriage.

In addition to the law, the factual situation in the instant case is also somewhat unclear. Although an attorney entered an appearance for the claimant, she denies entering an appearance and denies receiving any advance notice of the proceedings. Although such jurisdictional facts recited in the divorce decree may be subject to challenge and contradiction, after a lapse of time and particularly after the rights of third parties have been affected, only the clearest and most satisfactory proof would be accepted as adequate to overcome a finding or determination of jurisdictional facts. 27B C.J.S. Divorce § 358 (1959). If you were to accept the claimant's account that she did not participate in the divorce proceedings, the situation presented here would not be different from that discussed in our June 11, 1985 memorandum, supra, and we see no reason to change our conclusion in that memorandum that Delaware courts would not recognize the validity of such a Mexican divorce decree. Otherwise, the situation presented is a bilateral divorce in the sense discussed in the OGC precedential opinions discussed above, and there continues to be no Delaware case law on point.

Since there is no Delaware case law on point and the OGC opinions are somewhat conflicting, we may turn for guidance to principles generally accepted by American courts. As noted in our June 11, 1985 memorandum, supra, domicile is generally recognized as a crucial element of jurisdiction over divorce proceedings. 2/ .here is no question that neither party to the divorce at issue here was domiciled in Mexico at the time the divorce was granted. Therefore, we follow the conclusions reached in the two prior P~ opinions and conclude that Delaware courts would not recognize the divorce as valid.

1/ As noted in our June 11, 1985 memorandum, the opinion was followed in a June 10, 1971 memorandum from office to the Regional Representative, Bureau of Retirement and Survivors Insurance, New York, re Alfred W. P~

2/ It is clear that neither party to the divorce was domiciled in Mexico, and therefore it appears to follow that the Mexican court did not have jurisdiction over the divorce action. The discussions with the staff attorney for the Delaware Legislative Council regarding Del. Code Ann. tit. 13, § 1521 (Reports of Contact dated September 2 and October l, 1987) seem to be concerned with divorce decrees entered by courts of 'competent jurisdiction" and therefore do not seem especially helpful here, since the primary issue is precisely whether the Mexican court which granted the decree was a court of competent jurisdiction. However, should the claimant obtain a court decree pursuant to the provisions of Del. Code Ann. tit. 13, § 1521, we would be available to consider such a court decree.