PR 06210.023 Maryland
A. PR 06-360 Validity of Laotian Divorce - REPLY
DATE: October 4, 2006
The validity in the United States of a divorce decree from a foreign country is governed by the considerations of comity whereby one court defers to the jurisdiction of another court in a case which both courts would have the right to handle the case. Under comity a divorce decree granted in a foreign country by a court having jurisdiction will generally be given full force and effect in this country. A divorce in Laos is presumed valid in Maryland but may be found invalid without adequate documentation of the divorce. The Agency may challenge the validity of the divorce in Laos if sufficient documentation of the divorce is not provided or if neither party was a good faith domiciliary in Laos at the time of the divorce. However, equitable principles may lead Maryland to recognize the divorce. In order to establish an equitable divorce, the claimant would need to provide a ruling from a Maryland court of competent jurisdiction.
You have asked for an opinion as to the validity of a Laotian divorce for purposes of processing claims for divorced wife's benefits.
A divorce that purportedly took place in Laos would likely not be recognized as valid without official documentation and proof of at least one party's domicile in Laos at the time of the divorce but may be recognized under equitable principles of law in Maryland. To establish the latter, we believe it would be necessary to obtain a ruling from a Maryland court of competent jurisdiction.
On May 23, 2006, claimant, Kaysone S~, filed an auxiliary claim for divorced wife's benefits on the earnings record of Thao B~. For proof of marriage, Ms. S~ provided a page from her family registry that indicates the marriage took place on June 26, 1967, in Paris, France. The page was signed by the town mayor and dated March 20, 1973. For proof of divorce, claimant submitted a notarized statement from Mr. B~ in which he stated he and Ms. S~ were divorced on June 25, 1978, through a verbal agreement with no documents or statements. Claimant also gave a statement that the divorce took place in her family home on that date and was witnessed by both families and the head of the village as a government official.
Mr. B~ filed for disability benefits, naming his current wife, but not the claimant, on the application. He claimed he did not list Ms. S~ because they were divorced and he did not see a need to include her.
The claimant is entitled to divorced wife's benefits based on the account of her former husband, Thao B~ if: (1) Mr. B~ is entitled to old-age or disability benefits; (2) Ms. S~ is the wage earner's divorced wife; (3) she was validly married to the wage earner; (4) she was married to the wage earner for at least ten years immediately before she divorced the wage earner; (5) she applies; (6) she is not married; (7) she is 62 or older; (8) she is not entitled to an old-age or disability benefits based on a primary insurance amount that is equal to or larger than the full wife's or husband's benefit; and (9) she has been divorced from the wage earner for a least two years. See 42 U.S.C.A. § 402(b) and 416(d); 20 C.F.R. § 404.331 (2006).
Mr. B~, born on June 13, 1942, is 64 years old. He filed an application for disability benefits on September 13, 2005. The marriage in question lasted more than 10 years, from June 26, 1967 through at least June 25, 1978, depending on the validity of the divorce in question. Ms. S~ has applied for divorced wife's benefits. She is also at least 62 years old, born on July 1, 1943. She has no social security number and is entitled to no benefits based on her own primary insurance amount. The divorce, if valid, has been effective for more than 2 years. For the purposes of this memo, we will assume that the original marriage was valid and that Ms. S~ did not remarry. Thus, the sole issue here is whether claimant is the wage earner's "divorced wife" for the purposes of obtaining divorced wife's benefits on his account. See 42 U.S.C.A. § 416(d)(1); 20 C.F.R. § 404.331(a). For the reasons discussed below, we believe that the claimant could not be considered Thao B~'s "divorced wife" for the purposes of obtaining divorced wife's benefits on his account because there is inadequate documentation of any divorce.
Which State's Law Applies?
The Social Security Act and regulations provide that, in determining family status, the claimant is the wife of the wage earner if the courts of the State in which the wage earner is domiciled at the time the claimant files the application would find that the claimant and the wage earner are married. See 42 U.S.C.A. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. This requirement applies where the marital status at issue is that of the claimant and the wage earner.
There is no information in the material we received describing in which state the wage earner was living at the time of the claimant's application for wife's benefits. However, based on his May 10, 2002 statement, Mr. B~ was a resident of Maryland at that time. If the wage earner in this case was living in Maryland at the time of the claimant's application for spousal benefits, it is the law of Maryland that should be applied to determine whether or not claimant and the wage earner are to be considered validly married. See 20 C.F.R. § 404.345. Without further information indicating Mr. B~ was a resident of a different state at the time Ms. S~ filed her claim, this opinion will consider the laws of Maryland, his state of residence as of 2002.
A divorce in Laos is presumed valid in Maryland but may be found invalid without adequate documentation of the divorce.
As Laos is not within the United States, a Laotian divorce is not entitled to recognition in the United States by virtue of the Full Faith and Credit Clause of the United States Constitution (Art. IV, Sec. I). Instead, its recognition is governed by considerations of comity whereby one court defers to the jurisdiction of another court in a case in which both courts would have the right to handle the case. Under comity, a valid divorce decree granted in a foreign country by a court having jurisdiction will generally be given full force and effect in this country. A foreign decree is presumed valid until some evidence to the contrary is presented. Wolff v. Wolff, 40 Md.App.168, 178 (Ct. of Special Appeals of Maryland, 1978). However, courts may deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments. See Montemurro v. Immigration & Naturalization Service, 409 F.2d 832, 832 (9th Cir. 1969).
Laotian law in 1978 allowed divorce by court judgment or by a procedure in front of a local official known as a Tasseng. Letter from Constance A. J~, Senior Legal Research Analyst, Library of Congress, to David C~, Intern, Social Security Administration (July 18, 2006) (on file with the author). Both parties claim that the divorce in question was performed in front of a Tasseng. A divorce by local official required that the parties inform the Tasseng of their intent in front of four witnesses of legal age. Modified Civil and Commercial Code art. 26 (1973) (Laos). The Tasseng was required to give counseling time, not to exceed three months, to the couple to reconsider their intent. Id. If the parties still wished to pursue their divorce, the Tasseng completed their divorce papers. Id. Those papers were signed by the couple, witnesses, and sealed by the Tasseng. Id. The Tasseng forwarded the papers to the court to be kept as records and certified copies were made for each of the two parties.
No copy of the divorce papers (e.g., a decree, judgment, or order) has been submitted in this case. Mr. B~ and Ms. S~ have both given statements attesting to the procedure, but the official documentation has not been provided. Given the turmoil in Laos since 1978, the official documents, sent to the court to be kept as records, are likely unavailable. However, the certified copies that were made for the two parties should be available. Ms. S~ has provided a page from her family registry containing the marriage certificate, suggesting that the registry remains intact. It should contain the certified copy of the divorce papers. Without the official record of divorce, Maryland is likely to find the divorce was invalid in Laos.
Maryland may recognize the divorce in this case, even if invalid, under equitable principles.
The Social Security Administration (SSA) may challenge the validity of the divorce in Laos if sufficient documentation of the divorce is not provided or if neither party was a good faith domiciliary in Laos at the time of the divorce; however, equitable principles may lead Maryland to recognize the divorce. See Memorandum, PR 00-074 Marital Status of Zora J. S~, May 15, 2000. The majority of states will not recognize a foreign divorce if the divorce was not valid in the nation awarding it or if neither of the spouses was a good faith domiciliary of the foreign nation at the time the divorce decree was rendered. See Annotation, Domestic Recognition of Divorce Decree in a Foreign Country and Attacked for Lack of Domicile or Jurisdiction of Parties, 13 A.L.R. 3d 1419 (1967). The divorce in this case is invalid if the divorce papers, required by Laotian divorce law, were not completed. Moreover, it is unclear, based on the information in the file, whether the claimant or Mr. B~ was a good faith domiciliary of Laos at the time of the divorce. Although Ms. S~ is not contesting the divorce, the SSA may independently challenge the validity of a questionable divorce. See Slessinger v. Secretary of Health and Human Services, 835 F.2d 937 (1st Cir. 1987); SSR 88-15c.
In Slessinger, the divorce was not recognized because it occurred less than two months prior to the wife's claim for benefits, suggesting the divorce was solely for the purpose of obtaining benefits. Moreover, there was no indication that either party remarried in reliance upon the divorce. The facts in this case raise equitable considerations that are more favorable toward recognition of the divorce than those in Slessinger. Here, the divorce is 28 years removed from the benefits claim, there is no evidence of secondary purposes, and Mr. B~ remarried in reliance upon the divorce. Thus, although the divorce in Laos may be invalid, Maryland is more likely to recognize the divorce due to equitable principles of good faith and reliance.
Maryland would find the Laotian divorce valid only if official divorce documentation was provided and if at least one party was a good faith domiciliary in Laos at the time of the divorce. Maryland is likely to find the divorce invalid in this case because no copies of the divorce papers have been submitted and because it is unclear whether Ms. S~ or Mr. B~ were good faith domiciliaries of Laos at the time of the divorce.
If the divorce papers are submitted and at least one party was a good faith domiciliary of Laos, or if Maryland recognizes the divorce without that information, Ms. S~ will be eligible for divorced wife's benefits. See 42 U.S.C.A. § 402(b) and 416(d); 20 C.F.R. § 404.331. Maryland may recognize the divorce, even if invalid, due to equitable principles. We believe that in order to establish an equitable divorce, Ms. S~ should provide an order from a court of competent jurisdiction. Depending on Ms. S~'s reaction to the initial determination on her application for divorced wife's benefits, additional development may be necessary. For example, the field office might request a copy of a court order that establishes an equitable divorce between Ms. S~ and Mr. B~.
If the divorce is invalid and Maryland refuses to recognize it, however, Ms. S~ may be eligible for wife's benefits as she would still be married to Mr. B~. See 42 U.S.C.A. §§ 402(b) and 416(b); 20 C.F.R. § 404.330. If Ms. S~ is entitled to wife's benefits, Mr. B~'s current wife may still be entitled to benefits as a deemed spouse or a putative spouse. Since Mr. B~ thought he was divorced when he married his current wife, she likely believed the same and would probably qualify for wife's benefits as a deemed spouse. See 20 C.F.R. §404.346.
B. PR 00-074 Marital Status of Zora Jones S~
DATE: May 15, 2000
The validity in the United States of a divorce decree from a foreign country is governed by the common law doctrine of comity.
Under comity, a divorce decree granted in a foreign country by a court having jurisdiction will generally be given full force and effect in this country. Thus, the majority of States, including Colorado and Maryland, will not recognize a foreign divorce, regardless of its validity in the nation awarding it, unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the divorce decree was rendered.
Even though a divorce may be invalid, the equitable principles of estoppel and latches may preclude an individual from contesting the validity of a divorce where for example, the spouse acquiesced in the decree, accepted alimony, and/or took no action over a period of years to contest the divorce.
Under SSR 88-15c, SSA may collaterally attack the validity of a divorce and find that a claimant remains married. Whether or not SSA would challenge an invalid divorce depends on the particular circumstances of the case and the principle of equity.
You have requested our opinion as to whether Zora Jones S~ (Zora) can be considered "not married" based on a Haitian divorce and thus entitled to Title II benefits as the surviving divorced spouse of the deceased number holder (NH), Andre M. S~. For the reasons stated below, we believe Zora is "not married" for purposes of entitlement to Title II benefits as the surviving divorced spouse of the deceased NH.
A. Factual Background
Zora married the NH in February 1954 in Arizona, and the parties were divorced in May 1964 in Texas. In October 1966, Zora married James C. S~ in Maryland. On June 26, 1975, Mr. S~ obtained a divorce in Haiti, while both parties were domiciled in Maryland. Zora provided SSA with a certified copy of the divorce and stated she always assumed the divorce was valid. In recent contacts with SSA, Zora stated that after she and Mr. S~ were separated, he informed her he wanted a divorce (she did not remember when this occurred). Zora told Mr. S~ she could not keep him in a marriage he didn't want, so she assumed he would get a divorce. Mr. S~ was in the military at the time and told Zora he would be leaving the country. Zora stated she did not participate in the divorce proceeding in Haiti and was later notified of the divorce when she received a copy of the Haitian decree in the mail. However, the divorce decree indicates in French that both parties were legally represented "by attorneys of their choice." Zora did not receive any money or property settlement from the divorce. She has not communicated with Mr. S~ since the time of the divorce, but was informed he subsequently remarried. Zora never remarried. Mr. S~'s earnings record shows no activity since 1982 and his current whereabouts are unknown. Zora is 65 years old and domiciled in Colorado. She applied for benefits in December 1999.
To qualify for widow's insurance benefits as a surviving divorced wife, section 202(e)(1) of the Social Security Act provides, inter alia, that the surviving divorced wife must meet the following:
(A) is not married,
(B) (i) has attained age 60, . . .
(C) (i) has filed application for widow's insurance benefits . . .
In the present case, the validity of the divorce obtained in Haiti by Zora's second husband (Mr. S~) is the key to determining whether she is eligible for widow's insurance benefits on her first husband's Social Security account. Neither the Act nor the Commissioner's regulations specify to what law the Commissioner should refer in determining whether a divorce decree has validly terminated a marriage for purposes of section 202(e)(1). Based on our review of OGC opinions, however, we believe you have reasonably assumed that the Commissioner should apply the law of the state in which the claimant is domiciled at the time she applied for Title II benefits, i.e., Colorado. See Memorandum, Hugh M~, SSN: ~ Validity of Haitian Divorce - Maryland, CC III (Ho) to RC, SSA, June 13, 1985 (copy attached). Would Colorado look to its own law, or to the law of the state where the parties were domiciled at the time of the divorce (i.e., Maryland)? This issue is moot, since the case law of both Colorado and Maryland would result in the same findings.
The validity in the United States of a divorce decree from a foreign country is not governed by the full faith and credit clause of the United States Constitution, but by the common law doctrine of comity. Comity permits recognition of judgments of courts of foreign countries, with due regard both to international duty and convenience, and to the rights of American citizens. Under comity, a divorce decree granted in a foreign country by a court having jurisdiction will generally be given full force and effect in this country. The test of jurisdiction, however, is the test ordinarily applied in the United States, rather than the divorcing country. Thus, the majority of states will not recognize a foreign divorce, regardless of its validity in the nation awarding it, unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the divorce decree was rendered. See Annotation, Domestic Recognition of Divorce Decree in a Foreign Country and Attacked for Lack of Domicile or Jurisdiction of Parties, 13 A.L.R. 3d 1419 (1967).
Colorado and Maryland courts apparently have not decided the jurisdictional validity of a divorce decree from a foreign country. The Colorado Supreme Court, however, has held that the court of another state (Nevada) in which neither party to the divorce suit was domiciled had no jurisdiction to render a binding divorce decree. See Koscove v. Koscove, 156 P.2d 696, 698 (Colo. 1945); see also Viernes v. District Court In And For Fourth Judicial Dist., El Paso County, 509 P.2d 306, 310 (Colo. 1973) (mere fact that serviceman was stationed in Colorado for 90 days did not establish Colorado domicile for purposes of divorce jurisdiction); In Re Marriage of Wilson, 653 P.2d 85, 86 (Colo. App. 1982). Similarly, the Maryland Court of Appeals has found that a Nevada divorce decree was invalid where the wife who obtained the divorce had not acquired bona fide domicile in Nevada. See Staley v. Staley, 248 A.2d 655, 659 (Md. 1968); see also Madaio v. Madaio, 259 A.2d 524 (Md. 1969). In the instant case, neither Mr. S~ nor Zora were domiciled in Haiti at the time of the divorce proceeding. Therefore, we believe both Colorado and Maryland would find the Haitian divorce decree is not valid.
The remaining issue in this case is whether the principles of estoppel pose a bar to challenging the validity of the Haitian divorce, thereby rendering Zora "not married" for Social Security purposes. In Boyd v. Boyd, 189 P. 608 (Colo. 1920), the Colorado Supreme Court reversed a lower court's decision to annul a divorce decree where the evidence showed that the plaintiff-wife's name was forged on the county court papers filed in the divorce action. Because of the circumstances in which the plaintiff-wife was now bringing suit, however, the Court stated that:
Motive is immaterial in a suit involving property rights only, but in an action to set aside a divorce where there has been a remarriage, something more than property rights is involved; conscience, good faith, honesty of purpose and reasonable diligence are required and the doctrine of laches, estoppel, and acquiescence prevails.
Id. at 609 (citations omitted). The Court found that the plaintiff-wife knew of the divorce decree as early as September 1911, the month her husband obtained the divorce, or at least before the husband remarried in December 1911. The Court further noted the plaintiff-wife acquiesced in the decree and even accepted alimony until her suit was filed in July 1914. Because of these facts, the Court applied the doctrine of laches, estoppel, and acquiescence in refusing to let the plaintiff-wife contest the validity of the divorce decree.
Similarly, in In Re Marriage of Lockwood, 857 P.2d 557 (Colo. App. 1993), the Colorado Court of Appeals ordered the trial court to consider the defendant-husband's equitable defenses of laches and estoppel. The court noted the equitable defenses raised by the husband were based in part on the plaintiff-wife's knowledge of the divorce, her statement that she did not contest it, her inaction over the years, and the husband's remarriage. Id. at 561. See also Oakley v. Oakley, 493 P.2d 381 (Colo. App. 1972) (applying principles of estoppel in finding Mexican divorce valid as to parties); Memorandum, Estoppel - Mexican Divorce Decree - Colorado, CC VIII (B~) to RC, SSA, June 10, 1985 (copy attached).
Where the factual situation has merited it, Maryland also has applied the defense of laches in a suit involving an attempt to set aside a divorce decree obtained by a spouse who lacked the necessary residence requirements that would give the divorce court jurisdiction. In Pryor v. Pryor, 213 A.2d 545 (Md. 1965), the plaintiff-wife brought suit to strike out a Maryland divorce decree on jurisdictional grounds. In affirming the trial court's dismissal because of laches, the Court noted the plaintiff-wife knew of the divorce the year it was granted and waited almost 13 years to bring suit. In addition, the husband had remarried shortly after the divorce was granted and the second wife lived with the husband relying on the divorce decree as establishing the validity of her marriage. Id. at 547-49.
In the instant case, the Haitian divorce was granted almost 25 years ago. Although Zora did not receive any property or money as a result of a divorce settlement, she consented to the divorce and has always assumed the divorce decree was valid. Furthermore, during the time period in which Zora has acquiesced to the divorce decree (and continues to acquiesce), a remarriage has taken place. Considering these circumstances, it is our opinion that a Colorado or Maryland court probably would apply the doctrine of laches and/or estoppel and bar Zora from contesting at this late date the validity of the Haitian divorce decree. The POMS also supports the application of estoppel in this case. As pertinent here, a party may be estopped to deny the validity of a divorce, if she "otherwise accepted or acted in recognition of the decree as valid (e.g., knew of the divorce and allowed it to stand unchallenged for a long time)." POMS GN 00305.175A.2.e.
Case law adopted by SSA as its official position, however, suggests that SSA may challenge the validity of an invalid divorce even if a party is estopped from doing so. See Slessinger v. Secretary of Health and Human Services, 835 F.2d 937 (1st Cir. 1987); SSR 88-15c. In Slessinger, the claimant sought to have SSA recognize a Dominican Republic divorce decree purporting to end her marriage to her second husband so that she could be considered to be "not married" and entitled to mother's benefits on the earnings record of her deceased first husband under section 202(g)(1) of the Act. Applying the law of Rhode Island, SSA refused to recognize the foreign divorce decree and denied her claim. The court of appeals agreed with the district court's affirmation of SSA's decision. Applying the law of Rhode Island and Massachusetts, the court held that the principle of estoppel did not prevent SSA from challenging an invalid foreign divorce decree because the Agency was not a party to the divorce.
Id. at 941. Thus, under SSR 85-15c, SSA may collaterally attack the validity of a divorce and find that a claimant remains married.
SSR 85-15c suggests that SSA may be able to challenge Zora's Haitian divorce from Mr. S~ and deny her claim for benefits on her first husband's account because Zora would be viewed as still married to Mr. S~. The Slessinger court, however, apparently applied equitable principles under a particular set of facts to determine whether SSA could challenge a foreign divorce decree in accordance with relevant State law: "No . . . principles of estoppel apply to the Secretary. The Secretary has derived no benefit from the decree that would render it inequitable for the Secretary to contest the decree. It would be an odd rule that would require the Secretary to give effect to an otherwise invalid foreign divorce decree (even, hypothetically, one obtained for the sole purpose of re-establishing an entitlement to mother's insurance benefits) merely because a participant in the divorce would be estopped from a collateral challenge." Id. at 941 (emphasis added). Thus, we believe a Colorado or Maryland court would look at the circumstances of a specific case in determining whether a person who was not a party to a divorce (such as SSA), and who did not benefit from it in any way, may challenge the divorce decree.
While SSA's challenge of an invalid divorce was upheld in Slessinger, the instant case is distinguishable. In Slessinger, there was no indication that either of the parties to the invalid divorce had remarried in reliance on that divorce; here, Mr. S~ has remarried. Further, the time frame was very different in Slessinger. In that case, the claimant applied for mother's insurance benefits on the account of her first husband, who died on November 29, 1981. She married her second husband on October 22, 1983, and divorced nine months later on August 6, 1984. She applied for benefits on September 24, 1984. This time frame suggests the claimant obtained a divorce from her second husband solely for the purpose of obtaining benefits on the account of her first husband. Here, Zora and Mr. S~ obtained their invalid divorce more than 24 years before she applied for benefits. Thus, we believe the circumstances in the instant case raise equitable considerations that are more favorable toward a recognition that the claimant is "not married" than the facts in Slessinger. See Memorandum, Validity of divorce - Dominican Republic; Estoppel to deny Divorce Ralph R. D~, ~, RCC X (G~) to AAC/MOS, SSA, December 17, 1999 (copy attached).
In conclusion, while SSA may challenge an invalid divorce decree even where the parties are estopped from doing so, it may not collaterally attack a divorce in all situations. A Colorado or Maryland court would apply equitable principles, which in the instant case weigh in favor of the claimant such than an attack would likely not be upheld if challenged. For the reasons discussed above, it is our opinion that Zora should be considered "not married" for purposes of entitlement to Title II benefits as the surviving divorced spouse of the deceased NH, Andre M. S~.