This is in response to your request for an opinion regarding whether a divorce granted
in Mexico is valid for purposes of determining eligibility for widower's benefits.
The request was forwarded to our office by the Office of General Counsel in Atlanta,
because the numberholder died while domiciled in Massachusetts. For the reasons discussed
below, we believe that the divorce granted in Mexico in this case is not valid.
The number holder, Micalea J. C~, and the claimant, James E. C~, were married on September
14, 1968, in Townsend, Massachusetts. The number holder died on July 1, 2000, in Massachusetts.
Thereafter, the claimant married Jeanne M~ on October 2, 2004, in Lewisboro, New York.
The claimant and his second wife were divorced pursuant to a final decree issued by
the Civil Court of First Instance in Calpulalpan, Mexico on August 11, 2008. Both
the claimant and his second wife were residing in South Carolina at the time of the
divorce. It appears that neither the claimant nor his second wife appeared before
the tribunal in Mexico, but rather that both parties were represented by a legal representative
vested with a power of attorney. In any event, neither the claimant nor his second
wife was domiciled in Mexico at the time of the divorce. The claimant, now age sixty-two
(62), applied for widower's benefits on September 5, 2008.
Under the Social Security Act, a widower is entitled to old-age or disability benefits
if he meets several criteria. See Social Security Act, § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.335 (2008).
Here, the claimant clearly meets four out of the five criteria: he had been married
to the numberholder for more than nine (9) months prior to her death, and he was considered
the numberholder's widow under the law of the state in which the numberholder had
a permanent home at the time of her death, Massachusetts, see 20 C.F.R. §§ 404.335(a)(1), 404.345; he applied for widower's benefits, see 20 C.F.R. § 404.335(b); he is sixty-two (62) years-old, see 20 C.F.R. § 404.435(c); and he is not entitled to an old-age benefit that is equal
to or larger than the numberholder's primary insurance amount, see 20 C.F.R. § 404.435(d).
The fifth criterion is the only one at issue. Under 20 C.F.R. section 404.435(e),
the claimant must be unmarried to qualify for widower's benefits, unless 1) he remarried
after he turned sixty (60) years-old; 2) he is at least sixty (60) years-old, remarried
after he turned fifty (50) years-old but before he turned sixty (60) years-old, and
was entitled to widower's benefits as a disabled widower at the time of remarriage;
or, 3) he is at least fifty (50) years-old but not yet sixty (60) years-old, remarried
after turning fifty (50) years-old, and was disabled at the time of remarriage. Here,
the claimant remarried at age fifty-eight (58), see 20 C.F.R. § 404.435(e)(1), but was neither disabled nor entitled to disabled widower's
benefits at the time of remarriage, see 20 C.F.R. § 404.435(e)(2), (3). Thus, he is entitled to widower's benefits only if
he is unmarried, see 20 C.F.R. § 404.435(e), and the Commissioner will find the claimant unmarried only
if his divorce from his second wife is valid.
To determine whether a marriage or divorce of a claimant for widower's benefits is
valid, the Commissioner looks to the laws of the state where the numberholder had
a permanent home at the time of her death. See 20 C.F.R. §§ 404.434, 404.435. Here, the numberholder lived in Massachusetts at the
time of her death, and thus the validity of the claimant's divorce from his second
wife in Mexico must be analyzed under Massachusetts law to determine if the claimant
Massachusetts will neither recognize nor enforce a divorce decree granted by another
state or country when neither party to the marriage was domiciled in that state or
country at the time of the divorce. In Bergeron v. Bergeron, 192 N.E. 86, 89 (Mass. 1934), the Supreme Judicial Court would not recognize a divorce
decree granted in Mexico where neither the husband nor the wife lived in Mexico, or
even physically appeared before the tribunal that granted the divorce decree. The
court reasoned that "[a] decree of divorce rendered by one of the other States of
the United States in which neither of the parties were domiciled is not entitled to
full faith and credit and will not be recognized and enforced." Id. at 88-89. The court further stated that the same principles that govern the recognition
of a divorce decree from another state likewise govern the recognition of a divorce
decree from a foreign country. See id. at 89. Thus, the court ruled that it could not recognize a divorce decree granted
by a foreign country in which neither of the parties had been domiciled. See id.
The United States Court of Appeals for the First Circuit has acknowledged in a social
security benefits case that a divorce granted in a jurisdiction in which neither of
the parties was domiciled is not valid under Massachusetts law. See Slessinger v. Sec'y of Health & Human Servs., 835 F.2d 937, 942-943 (1st Cir. 1987). The First Circuit noted that the divorce
in Bergeron was ex parte, but that the Supreme Judicial Court's language in that case refusing
to recognize the divorce was broad and would appear to apply to bilateral divorces.
See id. at 943; see also Thompson v. Harris, 504 F. Supp. 653, 654 (D. Mass. 1980) (determining, in disability benefits case,
that bilateral divorce granted in Mexico was not valid under Massachusetts law where
neither party was domiciled in Mexico).
In the claimant's case, both the claimant and his second wife were domiciled in South
Carolina at the time of their divorce. The claimant's second wife appeared in Mexico
only through her legal representative; it is not clear from the evidence whether the
claimant physically appeared in Mexico or whether he also appeared only through his
legal representative. In any event, neither party was domiciled in Mexico at the time
of the divorce, and therefore, the divorce would not be recognized or enforced under
Massachusetts law._/1 The claimant still is married to his second wife under Massachusetts
law, and accordingly, is not "unmarried" as required by 20 C.F.R. section 404.435(e),
to be entitled to widower's benefits.
For the reasons discussed above, we believe that the Probate Court's finding that
a common-law marriage existed is not binding on the Agency. We also believe that the
1987 ceremonial marriage does not meet the regulatory requirements to constitute a
valid marriage to establish entitlement to widow's benefits or step-child's benefits.
Robert J. T~
Regional Chief Counsel
Nicole A. L~
Assistant Regional Counsel
_/1 We note that even if the courts of Massachusetts looked to the law of South Carolina
to determine the validity of the divorce, since the parties then resided in South
Carolina, the result would not change. The Office of the General Counsel, Region IV,
has concluded that South Carolina would not recognize the divorce as valid because
neither party resided in Mexico.