PR 06210.033 New Jersey
A. PR 09-153 Stanley G~ – Validity of Guyanese Divorce in New Jersey
DATE: August 13, 2009
New Jersey will recognize divorces obtained in foreign countries if the foreign court had jurisdiction and the foreign judgment does not offend New Jersey's public policy. Determining whether a foreign divorce meets these requirements and is valid is fact-specific. Under Guyanese law the number holder (NH) must have been domiciled in Guyana in order to be able to obtain a divorce. He was not required to be a resident. Even if there are doubts concerning the validity of the divorce, a New Jersey court may still find the divorce valid under the presumption of validity doctrine.
Whether the divorce in Guyana of Stanley A. G~, Number Holder (NH), and Claudette W. H~ (Claimant), is valid under New Jersey law.
OPINION We have determined that New Jersey will likely recognize the validity of the Guyanese divorce between the NH and claimant. Further, prior to the divorce, Claimant’s marriage to the NH lasted at least ten years.
A marriage license shows that the NH married Claimant in Irvington, New Jersey on August 14, 1990. The same marriage license lists Guyana as the birthplace of both the NH and Claimant. According to the Center for Programs Support (CPS) memorandum and correspondence, New Jersey has been the NH and Claimant’s regular residence since the date of marriage. The NH instituted an action of divorce in Guyana against Claimant in 2000. Claimant states she received notice of the divorce action, but did not respond. CPS has informed us that the NH’s ties to Guyana seem tenuous due to continuous work in the U.S. CPS has provided us with a document from the Guyanese High Court of the Supreme Court of Judicature, dated August 13, 2000 and entered September 4, 2000, regarding a decree of divorce between the NH and claimant.
1 CPS provided us with the following documents: a marriage license and a certificate of marriage for the NH and the claimant, a document from the Guyanese High Court of the Supreme Court of Judicature, dated August 13, 2000, and entered September 4, 2000, regarding a decree of divorce between the NH and the claimant, and a record of marriage for the NH and Yvonne D. A~. Other facts are derived from a memorandum and e-mail correspondence between CPS and the Office of General Counsel. This opinion is based on the facts as presented.
2 To be entitled to benefits as an independently entitled divorced spouse, claimant must also have been divorced from the insured for at least two years. 20 C.F.R. § 404.331(f) CPS has also provided us with a marriage license showing that the NH married Yvonne D. A~, also born in Guyana, on February 14, 2002 in Plainfield, New Jersey.
A divorced wife of an insured person is entitled to benefits if the claimant is the insured’s divorced wife and: (1) the parties were validly married under state law; (2) the parties were married for at least 10 years immediately before the divorce became final; (3) claimant applied for benefits; (4) claimant is not married; (5) claimant is 62 years old or older throughout a month in which all other conditions of entitlement are met; and (6) claimant is not entitled to benefits based upon a primary insurance amount that is equal to or larger than the full husband’s benefit.2 20 C.F.R. § 404.331; see Social Security Act (Act) § 202(b). In determining whether a claimant qualifies as a divorced spouse under the Social Security Act, an adjudicator must determine whether a divorce is valid according to the law of the NH’s domicile at the time of filing an application for spouse’s benefits. POMS GN 00305.170(A)(2). In this case, assuming that NH was domiciled in New Jersey at the time of claimant’s filing for divorced spouse’s benefits, the law of New Jersey would apply to determine whether the divorce is valid.
New Jersey Law on Validity of Foreign Divorces
Under the principles of comity, divorces obtained in foreign countries will be recognized in New Jersey so long as: (1) the foreign court had jurisdiction, and (2) the foreign judgment does not offend New Jersey’s public policy. See Dominguez v. Munoz, FM-07-751-05, 2008 WL 4682024, at *4 (N.J. Super. Ct. App. Div. 2008) (citing Fantony v. Fantony, 122 A.2d 593, 596-97 (N. J. 1956)). Determining whether a foreign divorce meets these requirements and is valid is fact-specific; A New Jersey court will consider several factors, including the domicile of the parties, adequate notice of the application for the foreign divorce and any hearings, whether both spouses participated in the divorce proceedings, whether any support, asset division, and child custody provisions are fair and reasonable, and the similarity of the grounds for the divorce to like grounds in New Jersey. See e.g. Hirschkorn v. Hait, FM-021898-07, 2008 WL 695892, at *8 (N.J. Super. Ct. App. Div. 2008) (holding that the Israeli Rabbinical Court had jurisdiction over divorce and parties where parties were Israeli citizens married in Israel, living in Israel, and practicing Judaism, and wife was given notice and opportunity to participate in proceedings); Chaudry v. Chaudry, 388 A.2d 1000, 1005 (N.J. Sup. Ct. App. Div.1978) (holding Pakistani divorce valid where Pakistan had jurisdiction to enter a divorce because of the Pakistan citizenship of the parties, the wife’s residence in Pakistan, the judgment of an appellate court in Pakistan validating the divorce, and the wife’s notice of divorce and participation in appellate proceedings; further holding that the reason for the divorce, the incompatibility of the parties by reason of the wife’s emotional problems and the failure to effect a reconciliation is “not such a departure from grounds for divorce in this State as to justify nonrecognition on public policy grounds”); Kugler v. Haitian Tours, Inc., 293 A.2d 706, 709 (N.J. Super. Ct. Ch. Div. 1972) (enjoining sales of Haitian divorce packages in New Jersey because such divorces would not be recognized in New Jersey, given that Haitian law does not require domicile of either parties to a divorce and only requires a fleeting transitory presence).
Guyanese Law on Divorce
Because New Jersey courts inquire as to whether a foreign court had jurisdiction over the parties and divorce proceedings, we sought the foreign law expertise of the Law Library of Congress (LLC) to determine whether the divorce at issue would be valid under Guyanese law. The LLC provided an opinion letter on this issue dated July 31, 2009 (copy attached). The LLC has advised us that the laws and procedures respecting divorce in Guyana are contained in the Matrimonial Causes Act (the Matrimonial Act) and the Rules of Court (Matrimonial Causes) (the Rules). The law in force in 2000, at the time of this divorce proceeding and the most current available law are the same.
According to the LLC, the procedures for requesting a divorce require the presentation of a petition to the High Court either by the husband or the wife. The Rules require the petition to state whether there have been previous proceedings respecting the marriage, provide a description of the husband, list the residences of the parties and indicate the domicile of the parties, unless the wife has a different domicile, in which case only the domicile of the husband need be stated. The Rules further require the filing of an affidavit stating that the facts set out in the petition are true.
Again, according to the LLC, grounds for divorce, if submitted by the husband, are adultery, malicious desertion with or without adultery, cruelty, or unsound mind on the part of the respondent. The Matrimonial Act does not define the term “malicious desertion.”
Neither the Matrimonial Act nor the Rules expressly state what is required for a court in Guyana to have jurisdiction to grant a divorce. There is no requirement in the Matrimonial Act or the Rules that a petitioner for divorce actually be a resident in the country, and there are no reported cases from Guyana in which such a requirement has been judicially established. The LLC noted, however, that the Matrimonial Act gives the High Court jurisdiction under the common law in matrimonial causes. In determining what the guiding principles of common law are, Guyanese courts turn to English common law as guidance. At English common law, a court may assert jurisdiction not conferred on it by a statute if the petitioner is domiciled in England or Wales, even if the parties were married abroad or a breakdown of the marriage occurred abroad. Under English common law, there is a distinction between a domicile of origin and a domicile of choice. A person’s place of birth is normally his or her domicile of origin, whereas a domicile of choice is acquired by residing in another jurisdiction with the intention of making that jurisdiction his or her domicile of origin. When a domicile of choice is abandoned, a person reacquires his or her domicile of origin. The LLC advises that a Guyanese divorce petition must state the places of residence and at least the domicile of the petitioning husband; this suggests that a petitioning husband must at least be domiciled in Guyana to be able to obtain a divorce in that country
The Rules, like New Jersey law, require that parties be served notice of the divorce proceedings. The Rules require the service of a citation under the seal of the Court to each respondent in the case and they require the service of the citation to be “personal” unless the court grants permission for substitution of another form of service when personal service cannot be effected. After service has been effected, the citation must be returned and the certificate of service contained in it must be endorsed. Moreover, the Rules require that the petitioner file an affidavit stating that the respondent was “duly cited and has not appeared” before being able to proceed with the divorce action against a respondent who does not appear. Thus, attendance of both parties is not required in divorce proceedings in Guyana. Judges, however, do have discretion to decline to proceed ex parte if they do not believe it would be “expedient” to hear the case.
Finally, The LLC advised that a divorce decree is to be a decree nisi when it is first issued. A petitioner can petition for a decree nisi to be made absolute six weeks after it is obtained. During this period, the respondent can contest the divorce, even if she did not appear prior to the granting of the decree nisi. A divorce is not final until it is made absolute. Under Guyanese case law, a decree absolute is in effect from the day it is granted.
Turning to the facts of this case, the LLC concluded that the divorce decree appears to comply with the provisions of Guyana’s matrimonial causes legislation and rules. First, with regard to domicile, we note that under Guyanese law, the NH must have been domiciled in Guyana in order to be able to obtain a divorce. He was not required to be a resident of Guyana. In this matter, the NH was born in Guyana, making Guyana his domicile of origin, and the domicile he would reacquire if he subsequently had a domicile of choice (such as New Jersey) and had abandoned it. Further, Guyanese law required the NH to state both his residence and his domicile on the divorce petition and then to file an affidavit stating that the facts set out in the petition were true. Absent information that the husband perjured himself in the petition and the affidavit, it appears that a Guyanese court could assert jurisdiction to grant this divorce decree based on the NH’s stated Guyanese domicile, despite his seeming residence in New Jersey.
Second, with regard to the service of notice, Guyanese law required the NH to personally serve the respondent with a citation under seal of the court. After service, the citation must have been returned and the certificate of service contained in it endorsed. Thus, the Guyanese court had before it proof of service on claimant. Further, Claimant has stated that even though she did not respond, she did receive notice of the divorce action in Guyana. We believe that the divorce decree complies with New Jersey’s due process requirements. Compare Hirschkorn, 2008 WL 695892, at *8 (upholding Israeli divorce where wife was given fair notice of Israeli proceeding similar to the New Jersey procedural rules) with Ali v. Ali, 652 A.2d 253, 258 (N.J. Sup. Ct. Ch. Div. 1994) (finding Sharia Court divorce decree offended all due process requirements and was therefore unenforceable given that wife was never personally served with notice of proceedings but instead her notice consisted of her relatives knowing of divorce proceeding and an alleged phone call with her husband regarding the proceedings) (findings questioned subsequently by New Jersey courts regarding child custody, not divorce issue).
Third, the LLC has advised that the divorce in the instant case appears to comply with other provisions of Guyana’s matrimonial legislation and rules. The divorce decree appears to have been filed with the judge in August, making it a decree nisi, and granted six weeks later in September 2000, at which time the decree nisi became a decree absolute. The six weeks between the time that a divorce decree is first issued and made absolute provided the claimant with an opportunity to contest the divorce. A decree absolute is in effect from the day it is granted, so NH’s and Claimant’s divorce was in effect as of September 4, 2000, as indicated by the divorce decree document CPS provided.
Finally, the divorce decree in this case was granted on the grounds that the NH stated that claimant was “guilty of malicious desertion” and that the respondent failed to respond to the petition. The LLC has advised that Guyana’s Matrimonial Causes Act does not define the term “malicious desertion.” New Jersey similarly recognizes desertion as a ground for divorce. N.J.S.A. 2A:34-2. We believe a New Jersey court would likely find that the grounds for divorce in this case do not offend New Jersey public policy. See Chaudry, 388 A.2d at 1005 (finding that Pakistani divorce did not offend New Jersey public policy where grounds for divorce – incompatibility of parties by reason of the wife’s emotional problems – were not such a departure from New Jersey grounds for divorce).
Thus, we conclude that a New Jersey court would recognize the validity of the NH’s Guyanese divorce.
New Jersey Law on Presumption in Favor of the Second Marriage Even if there are doubts concerning the NH’s and claimant’s divorce, a New Jersey court may still find the divorce valid under the presumption of validity doctrine. New Jersey law recognizes a strong presumption favoring the validity of the latest of two successive marriages involving a common participant. See Prater v. Aftra Health Fund, 23 F. Supp. 2d 505, 508 (D.C.N.J. 1998); see also POMS GN 00305.035; PR 06210.033. The party challenging the validity of the second marriage has the burden of proving by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was terminated by divorce. See Newburgh v. Arrigo, 443 A.2d 1031, 1035 (N.J. 1982); see also Prater, 23 F. Supp 2d at 508 (finding that wife’s assertion that a final judgment of divorce was never entered was not clear and convincing evidence to rebut presumption that marriage to decedent had been terminated by divorce).
When the validity of a foreign divorce is attacked, the challenger “must prove all defects, including lack of jurisdiction in the foreign courts.” Id; see also Raspa v. Raspa, 504 A.2d 683, 685-688 (N.J. Sup. Ct. 1985). In Raspa, plaintiff’s current husband attacked the validity of plaintiff’s previous divorce which was obtained in Mexico. In that divorce, plaintiff never received a summons and complaint, never appeared in any divorce proceedings in Mexico, received the final decree of divorce in the mail, and was told by someone that notice of action was published in a newspaper. The court found that plaintiff’s current husband failed to prove by clear and convincing evidence that plaintiff’s ex-husband did not go to or live in Mexico at the time of the divorce proceedings, that the ex-husband obtained a mail-order divorce, or that notice was not in fact published. Thus, even though there were doubts as to whether the manner in which plaintiff’s divorce was obtained comported with New Jersey’s due process requirements, the court found that the challenger had failed to meet his burden of disproving every reasonable possibility that the Mexican divorce was valid. Id.
Here, there is no evidence that any party is challenging the validity of the divorce. Further, since there does not appear to be clear and convincing evidence to the contrary, a New Jersey court will likely find that the NH’s subsequent marriage was valid and, by extension, that the NH and the claimant are no longer married.
Finally, based on the date of marriage in the certificate of marriage you have provided (August 14, 1990) and the date on which the divorce decree became absolute (September 4, 2000), Claimant’s marriage lasted at least ten years. POMS GN00305.035.
Based on the foregoing, a New Jersey court will likely find the divorce between the NH and claimant was valid. Further, prior to the divorce, Claimant’s marriage to the NH lasted at least ten years.
Stephen P. C~
Acting Regional Chief Counsel
Assistant Regional Counsel
B. PR 04-323 Whether a prior bigamous marriage voids a subsequent marriage for the purposes of determining Joan R~ entitlement to benefits as the spouse of Emil R~, SSN ~
DATE: November 8, 1984
To receive spouse's benefits on the NH's record, the claimant must provide clear and convincing evidence that her prior husband was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If she can provide evidence sufficient to establish that her marriage to her prior husband was void, the validity of the NH's divorce from his prior spouse must be considered. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to her marriage with her prior husband will continue, and she cannot receive benefits as the NH's spouse.
You have asked for advice on whether a valid marriage exists between the number holder, Emil R~, and the claimant, Joan R~. As we understand the facts of the case, Joan R~ contends that her first undissolved marriage to Raymond S~ was void for bigamy based on his prior marriage to Eileen D. P~ S~, and that therefore her subsequent marriage to Emil R~ is still valid. Based on the current factual record, we cannot draw any conclusion but have outlined possible outcomes depending on what is uncovered in further development of the facts.
Joan R~, formerly Joan E. V~, married Raymond S~ in New York on December 3, 1954 in a ceremony solemnized by clergyman, Reverend John U~ (Ex. 1). In the December 2, 1954 Affidavit for License to Marry, Raymond indicated that he had never been married and never been divorced (Ex. 2). In addition, Joan and Raymond listed New York as the place of their residence. According to Emil R~'s statement to the Social Security Administration (“SSA”), Joan and Raymond had three children together (Ex. 3). There is no further information in the record regarding the duration or character of the Joan-Raymond marriage.
Joan attested to the City Magistrate of New York City on September 23, 1958 that Raymond committed bigamy by marrying her when he was still married to Eileen (Ex. 4). The record does not indicate when Joan first became aware of Raymond's prior marriage to Eileen. Raymond subsequently pled guilty on January 21, 1959 to perjury in the second degree (under New York Domestic Relations Law § 16 and punishable under New York Penal Law § 210.10) (Ex. 5).
In Emil's letter to the SSA, he stated that Joan told him she had never divorced “Alan S~" (Ex. 6). According to Emil, Joan and he met with an attorney, Anthony D~, to procure a divorce for Joan in preparation for their own wedding (Ex. 3). Attorney D~ advised them that a divorce would be unnecessary as the marriage with Raymond was void because of Raymond's bigamy. Emil testified that on the strength of D~'s advice, Joan did not divorce Raymond and that both he and Joan entered into their marriage believing that the marriage was legal. This is consistent with Joan's statement to the SSA that when she married Emil, she was free to marry and that Emil knew it (Ex. 7).
On July 16, 1962, in her sworn Application for Marriage License, Joan listed her name as “Joan V~” and noted that she had never been married (Ex. 8). Emil listed the fact of his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob M~, Jr. in the Circuit Court of Winston County, Alabama (Id.).
As to Emil's prior marriage, your records reference a marriage between Emil and Theresa C~ September 18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham, Alabama (Ex. 9). The record does not contain copies of the marriage license or certificate. On his application for a license to marry Ellen, Emil identified only Theresa C~ as a prior wife and that she was alive at the time of the application (Ex. 10). He further listed incompatibility as the grounds for divorce and noted the date of divorce as June 2, 1958. Your records, however, contain a copy of the Report of Divorce between Emil and Theresa filed with the Alabama Department of Health (Ex. 11). That report lists the date of their marriage as September 27, 1950 and the date of the final decree of divorce as June 17, 1958. The divorce decree indicated that the divorce was granted to Theresa on the grounds of abandonment and that at the time of the divorce they had one child under eighteen years. The divorce decree contained no information regarding Emil's place of residence. Similarly, for Theresa, the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. No judge's signature appears on the divorce decree. The divorce decree is signed by Dorothy S. H~, State Registrar, but the date of her signature appears to be June 19, 1995. Your records show no social security number for Theresa C~ (Ex. 9).
On July 21, 1962, Emil married Joan in Union City, New Jersey in a ceremony solemnized by Judge Frank G. H~ (Ex. 8). Although they married in New Jersey, both Emil and Joan listed New York as their place of residence on the Application for Marriage License. The Joan-Emil marriage produced no children, and Joan and Emil subsequently separated (Ex. 3). Emil stated that they separated in 1964 (Ex. 3), while Joan asserted that they separated in the late 1960s (Ex. 7). Emil testified that prior to his current marriage to Ellen G~, he consulted attorney D~ about obtaining a divorce from Joan (Ex. 3). According to Emil, D~ told him that securing a divorce would be unnecessary as the marriage was void for Joan's bigamy in failing to divorce Raymond prior to marrying Emil. Emil testified that based on D~'s counsel, he married Ellen on August 7, 1965 without first divorcing Joan. Your records confirm that Emil married Ellen on August 7, 1965 in Brooklyn, New York (Ex. 9-10).
While Emil asserted that he had no further contact with Joan after their separation in 1964 (Ex. 3), Joan stated in her claim to the SSA that Emil informed her of his plans to marry Ellen (Ex. 7). Joan stated that when she told Emil to get a divorce first, he made no comment and drove off. She reported never receiving any divorce papers from Emil.
Emil filed for retirement benefits in November 1991 (Ex. 3). He claims that because he knew his marriage to Joan was bigamous and “not legal,” he did not list Joan on his benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that Emil listed Joan as a prior spouse, indicating that they married on June 19, 1962 and that their marriage ended on January 15, 1963 (Ex. 9). Your office has also confirmed that Ellen R~ is in current payment status as the spouse on Emil's record. Joan has filed an application for spouse's benefits, claiming she is Emil's legal spouse. We understand from your office that Emil was residing in Florida at the time Joan filed her application.
In examining wife's benefit claims, the SSA will look to the laws of the State where the insured had a permanent home at the time his wife applies for wife's benefits. 20 C.F.R. § 404.344. If the spouses were validly married under State law at the time of the wife's application for benefits, the relationship requirement will be met. Id. In this case, Emil was domiciled in Florida at the time Joan filed her application for wife's benefits. As such, we must determine whether Florida would recognize the existence of a valid marriage between Joan and Emil.
Under Florida law, the validity of the marriage between Joan and Emil would be evaluated with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944) (holding that in determining the validity of a marriage, reference will be made to the “law of the place where it is contracted.... And, if valid according to the law of the State where contracted, a marriage is to be regarded as valid in every other jurisdiction”) (citations omitted). Thus, under Florida law, the marriage between Joan and Emil will be considered valid if it is valid under the law of New Jersey, where the marriage was contracted.
1. The Effect of the Joan-Raymond Marriage on the Joan-Emil Marriage:
Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because Joan and Emil properly obtained and delivered their marriage license prior to having the marriage solemnized by Judge H~, New Jersey would normally recognize that Joan and Emil entered into a valid ceremonial marriage on July 21, 1962, especially since neither Joan nor Emil instituted divorce proceedings against each other.
To establish eligibility for spousal benefits, presentation of a copy of the public record of marriage normally constitutes preferred evidence of a valid ceremonial marriage, such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709, 404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the validity of the latest of two successive marriages involving a common participant. Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN 00305.035. Thus, it facially appears that Joan's marriage to Emil is presumptively valid.
The record, however, contains additional information indicating that Joan was already validly married to Raymond at the time she married Emil. New Jersey accepts the common law proposition that “[c]ivil disabilities, such as a prior marriage, … make the contract of marriage void Ab initio and not merely voidable.” Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage is a legal nullity, a judgment of nullity is not required to render the marriage void. Minder, 83 N.J.Super. at 163, 99 A.2d at 71. Joan's marriage to Emil may be void, therefore, because of Joan's possible bigamy.
Determining who has the burden of proving the validity of the Joan-Raymond marriage is the critical issue in this case. Although New Jersey case law furnishes a burden-shifting framework for determining the presumptive validity of subsequent marriages, the Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proofs and evidence necessary to establish the right to benefits. 42 U.S.C. § 205(a). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708. In deciding whether evidence is convincing, the SSA will look to whether “information contained in the evidence agrees with other available evidence, including our records.” 20 C.F.R. § 404.708(f). Here, the record contains evidence of a valid ceremonial marriage between Joan and Raymond as well as Joan's testimony that she married Raymond and never divorced him. Accordingly, this evidence conflicts with the evidence of the validity of Joan and Emil's marriage, and Joan bears the burden of proving that her marriage to Raymond, which Joan alleges was Raymond's second marriage, was void because of his bigamy.
a. The Presumption of Validity Attaching to the Joan-Raymond Marriage:
The record indicates that Joan married Raymond in New York on December 3, 1954. Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (M~ 2003), and the marriage is solemnized by “a clergyman or minister of any religion….” N.Y. Dom. Rel. Law § 11 (McKinney 2003). Because Joan and Raymond properly obtained and delivered their marriage license prior to having their marriage solemnized by a clergyman, New York would normally recognize that Joan and Raymond entered into a valid, ceremonial marriage on December 3, 1954.
As with New Jersey, once a ceremonial marriage has been performed, New York recognizes a strong presumption in favor of holding the latest of subsequent ceremonial marriages valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Meehan's Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued”). Furthermore, the presumption of validity of the second marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” Grabois, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate “a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise.” Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984) (stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).
In this case, it seems unlikely that a court would find that the balance of equities tips in favor of invalidating Joan's marriage to Raymond. Joan and Raymond entered into a ceremonial marriage that allegedly produced three children. The presumption of validity will be particularly strong here as the legitimacy of Joan and Raymond's children may otherwise be cast in doubt. Furthermore, no strong public policy would be served by permitting Joan to void her marriage to Raymond in order to obtain wife's benefits from Emil, a man to whom she was putatively married for only three years and with whom she had no children, and who has been married to his current wife, Ellen, for thirty-nine years. On these facts, New York will likely recognize the presumption of validity that attaches to Joan and Raymond's ceremonial marriage.
Joan, however, does not dispute that she participated in a marriage ceremony with Raymond. She contends that because Raymond was previously married to another living woman at the time of their marriage, her marriage to Raymond was necessarily void under New York law. New York Penal Law establishes that “a person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse.” See N.Y. Penal Law § 255.15 (M~ 2003). New York Domestic Relations Law states that “a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living....” N.Y. Dom. Rel. Law § 6 (M~ 2003). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).
To rebut the presumption of validity on the grounds of Raymond's bigamous act, Joan must prove that, at the time of her marriage to Raymond, Raymond and Eileen had been validly married and the marriage had not terminated by annulment, divorce, or Eileen's death, even though this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, Joan must establish that Raymond's prior marriage to Eileen was “valid” by disproving through clear and convincing evidence “every reasonable possibility which would validate” the prior marriage. Seidel, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence of a divorce or annulment in a diligent record search of all counties in which both parties to the first marriage have resided will suffice to rebut the presumption. Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re Brown's Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the “strong evidence” of a certified statement as to a record search constituted prima facie evidence of no record of divorce and outweighed the oral testimony of putative spouse and presentation of an uncertified divorce decree); In re Lancaster's Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was sufficiently rebutted on the basis of appellant's testimony that he never instituted nor was served with any dissolution proceedings; no record of divorce in a search of all five New York City boroughs in which decedent resided; and decedent's false statement on her marriage license application that she had never before been married or divorced); In re Bauer's Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where there were no children, the presumption was sufficiently rebutted on showing that decedent's first husband was still alive at and after the second marriage had been entered, and that decedent had falsely declared single status in executing her application for the subsequent marriage license).
b. Raymond's Indictment for Perjury and Possible Bigamy:
Based on the record, it can be reasonably inferred that Raymond was initially charged with bigamy for marrying Joan while he was still married to another living woman. He was then indicted for perjury in the first degree. At the time of Raymond's indictment, a conviction for perjury in the first degree required materiality to the action or matter involved. If he had been convicted of first degree perjury, then we might have assumed that Raymond falsely stated in his second marriage application that he was never before married and never before divorced, and that but for his false attestation, no marriage could have been contracted between Joan and Raymond. Raymond, however, was not convicted of first degree perjury but pled guilty only to second degree perjury. In 1958, a conviction for perjury in the second degree did not require materiality to the action at hand. Because second degree perjury did not require materiality to the action, we may not assume that Raymond admitted to having married Eileen prior to marrying Joan and that his marriage to Eileen was still valid at the time he married Joan. Accordingly, Joan may not rely on Raymond's guilty plea to perjury in the second degree as evidence of a valid marriage existing between Raymond and Eileen at the time of Joan's marriage to Raymond.
Thus, Joan must present clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. Additionally, Joan must provide proof of a diligent search of all records in all counties in all countries in which Eileen and Raymond resided to show that the marriage was never terminated. SSA may assist her. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits on Emil's record.
2. Possible Invalidity of the Emil-Theresa Divorce:
Prior to his marriage to Joan, the record indicates that Emil was married to, and divorced from, Theresa. Emil and Theresa, however, may not have been validly divorced. If the grant of divorce between Emil and Theresa was not legitimate, then Joan's marriage to Emil would be void and she could not receive benefits as Emil's spouse. Furthermore, we note that because Joan and Emil did not reside together at the time of her application for spousal benefits, Joan may not receive benefits as Emil's deemed wife. If further development of the facts by the SSA establishes that the divorce between Emil and Theresa was invalid, then Joan cannot receive benefits as Emil's spouse because his marriage to Theresa was never terminated. There are no copies of a marriage certificate or application for a marriage license for Emil and Theresa. Although your records contain a copy of Emil and Theresa's divorce decree, it is possible that the divorce decree may have been invalid, either because of jurisdictional infirmities arising from Theresa's failure to establish bona fide residence in Alabama or because the divorce may have been fraudulently granted.
a. Issues of Jurisdiction
With respect to the issue of Theresa's residency in Alabama, the Alabama Supreme Court has explicitly held that “Alabama courts have no jurisdiction over the marital status of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred on the courts, even with the parties' consent.” Winston v. Winston, 279 Ala. 534, 537 (1966) (reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama established that “[w]hen the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved….”
In this case, there is a question as to whether Theresa established a bona fide residence in Alabama when she instituted divorce proceedings against Emil, given that the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. And, if Theresa was a resident, we do not have any information regarding the length of her residency. Although Emil noted in his application to marry Ellen that Theresa had served him with summons in Brooklyn, we do not have a copy of the summons. Further factual development by the SSA, especially review of the allegations regarding residence contained in the summons, should be undertaken to determine Theresa's residency status at the time of the divorce proceedings.
The issue of the validity of Emil and Theresa's divorce is further complicated by the possibility that their divorce decree may have been fraudulently granted by Judge M~. Charges were brought against Judge M~ in 1964 for granting over 5000 divorces to nonresidents in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972) (affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge M~'s stamped or typed name, an embossed court seal, and certification by the Register in Chancery attesting that the decree was on file and recorded in the records of the Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled and unrecorded. Edwards, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed the trial court's jury instruction that “if you find from the evidence that a divorce decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of Alabama was not signed by the Judge of that court and did not in some other way reflect that it was the decision of the court and was not filed or enrolled in the records of that court, then you would be justified in finding that such a decree was not a valid divorce decree.” Id. at 882 (emphasis in original) (citations omitted).
The relevant facts in the record are insufficient to determine whether the Emil-Theresa divorce was fraudulently granted. First, Emil admitted that he did not appear in person in court. Second, the divorce decree listed Theresa's residence as “Ala” but included no other information on residency for Theresa or Emil. Third, the divorce decree contained no signature by Judge M~. Fourth, although the divorce decree contains a signature by Dorothy H~, State Registrar, attesting to the embossment by official seal, the date of her signature appears to be June 19, 1995. Finally, the divorce decree, on its face, appeared to have been validly recorded in the Alabama Department of Health, Bureau of Vital Statistics. Accordingly, further research must be conducted to ascertain whether Judge M~ fraudulently granted a divorce to Emil and Theresa. We suggest that the SSA request official copies of Emil and Theresa's divorce decree from the Winston County Clerk at the Winston County Vital Records and the Alabama Department of Public Health, Center for Health Statistics, Office of Vital Records. The addresses are:
We recognize that the ultimate burden of proof lies with Joan to prove that she is entitled to benefits as Emil's spouse. However, because the SSA, an uninvolved party to the Emil-Theresa marriage, questions the validity of the Emil-Theresa divorce and because the SSA has greater investigative resources than Joan, the courts of New York will likely find that the SSA has the burden of conducting the substantial records searches required to determine the validity of the Emil-Theresa marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972) (holding that “[g]iven the comparatively great investigative resources of the Secretary and the apparently restricted means of appellant, it seems more appropriate to require the agency to undertake the substantial record searches necessary to negative the continued validity of [the prior marriage] … [particularly as] the presumption favoring a later marriage assumes greater force where…the later marriage is attacked, not by a putative first wife or children of the first marriage, but instead by a party, like the Secretary, who is altogether a stranger to any domestic relationship in question”); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983) (where plaintiff requested that the Secretary conduct the considerable record searches required to prove the continued validity of her husband's prior marriage, “[i]t was not the plaintiff's responsibility to ferret out this information. It was the Secretary's obligation to overcome the presumption of the validity of [plaintiff's] marriage”). It is important to note, however, that if, after reasonable efforts, the evidence is inconclusive or insufficient to establish the invalidity of Emil's divorce from Theresa, the presumption of validity attaches to Emil's marriage to Joan. Joan, therefore, might be entitled to receive spousal benefits as the wife of Emil, assuming, of course, that she has sufficiently demonstrated that her marriage to Raymond was void.
c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:
The Supreme Court of New Jersey has held that where the validity of an “ancient foreign divorce” is challenged, equitable principles of fairness will apply to defeat invalidation. Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998) (holding that although husband provided sufficient evidence to rebut the presumption of validity of his marriage, including undisputed evidence of jurisdictional defaults associated with his wife's prior 1968 Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the validity of marriage based on the invalidity of wife's prior divorce). The court cautioned against “the human and legal problems that would result if those ancient foreign divorces are found to be invalid many years later.” Id. at 916, 152 N.J. at 233.
In determining whether a prior, ancient divorce will be found invalid, the court will consider factors such as “(1) the length of time the parties were [subsequently] married, (2) the acts undertaken by the parties that indicate they held themselves out to as husband and wife, and (3) the good faith of the party who procured the first divorce.” Heuer, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, Emil was married to Joan on July 21, 1962, and then to Ellen from August 7, 1965 to the present time. There is nothing in the record to indicate that Emil did anything other than to hold himself out to the public as married to Joan and later to Ellen. There is also no indication that Emil was involved in fraud. The record is not sufficient, however, to determine whether Theresa acted in good faith in procuring the divorce.
Given the language of the Heuer decision, a court in New Jersey would likely find that the divorce between Theresa and Emil was valid, even if additional factual development of the record conclusively determined that there was jurisdictional error, a fraudulent grant of divorce, or fraud on the part of Theresa in pursuing a divorce in Alabama. If it turns out that Emil participated in the fraud, especially if Joan was also involved, you should contact us to discuss the issue.
In conclusion, to receive spousal benefits on Emil's record, Joan must provide clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If Joan can provide evidence sufficient to establish that her marriage to Raymond was void, the validity of Emil's divorce from Theresa must be considered as discussed above. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits as Emil's spouse.
Barbara L. S~
Chief Counsel, Region II
Assistant Regional Counsel