TThe validity of a divorce decree granted by a foreign country is afforded comity by the courts of NY where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, was established by a statutory "brief contact" through the appearance of one of the parties. However, mail order divorces, where a husband and wife attempt to confer jurisdiction upon a court of a foreign nation by executing powers of attorney to counsel residing there, and forwarding the divorce papers without visiting that country, are void.

Based on the claimant's fourteen year delay in contesting the divorce, during which time the NH remarried, the claimant would be estopped from denying the validity of the divorce on the grounds of laches.

You asked for an opinion as to whether the Number Holder and Pamela L. B~ had a valid divorce and whether Pamela L. B~ would be entitled to disabled widow's or divorced disabled widow's benefits on the Number Holder's account.

Question Presented

CONCLUSION

Based on our review of the facts of this case and our research of the relevant New York statutes and case law, it is our opinion that the Number Holder and Pamela L. B~'s "mail order" divorce from the Dominican Republic would not be considered valid under New York law. However, based on her fourteen year delay in contesting the divorce, during which time the Number Holder remarried, we believe that Pamela L. B~ would be estopped from denying the validity of the divorce on the ground of laches. Accordingly, it is our opinion that Pamela L. B~ is not entitled to disabled widow's benefits on the Number Holder's account. Furthermore, even if the divorce had been valid, Pamela L. B~ would not be entitled to divorced disabled widow's benefits on the Number Holder's account as she was not married to the Number Holder for ten years immediately before the date on which her divorce from the Number Holder would have become effective.

BACKGROUND

In your request, you indicated that the Number Holder was married to Pamela L. B~ (Pamela) on November 26, 1987. The Number Holder and Pamela were "unofficially" separated in 1989. On May 13, 1991, the Number Holder filed for and was granted a divorce from Pamela in Santo Domingo, The Dominican Republic. The divorce papers indicate that the Number Holder was domiciled in the Netherlands and Pamela was domiciled in West Virginia at the time of the divorce. There is no indication that either the Number Holder or Pamela was present in Santo Domingo when the divorce was filed or processed. The divorce paperwork indicates that the Number Holder and Pamela each signed and filed a notarized "power of attorney" form authorizing attorneys with offices in Santo Domingo to represent them in the divorce action.

On March 24, 1991, a child, Paul V. B~ (Paul), was born to the Number Holder and Zenaida B~ (Zenaida). The Number Holder and Zenaida were married in Nevada on August 1, 1991. The Number Holder and Zenaida remained married until the time of the Number Holder's death.

The Number Holder died on April 7, 2003 in Wellsville, New York. At the time of his death, the Number Holder had recently relocated to Wellsville to start a new job. The Number Holder, Zenaida, and Paul had lived overseas from 1994 until 2003, most recently in Panama. At the time of the Number Holder's death Zenaida and Paul were still in Panama, but had planned to move to Wellsville to join the Number Holder shortly after he'd settled in.

In June 2003, Pamela received copies of her divorce papers from the Number Holder's attorney. She believes that the divorce in the Dominican Republic was never finalized because the Number Holder's attorney told her that he believed that she and the Number Holder were still married at the time of the Number Holder's death.

Pamela filed an application for surviving divorced disabled widow's benefits on October 20, 2005. That application indicates that Pamela married the Number holder on November 26, 1987 and that their marriage ended on April 7, 2003 due to the Number Holder's death.

DISCUSSION

A. Determining the Validity of a Foreign Divorce

As you noted in your request for a legal opinion, the validity of a foreign divorce is questionable when a person alleges that he/she was divorced in a foreign country and there is no indication that either party to the divorce had some other connection with that country. POMS GN 00305.170(A)(3)(b). A divorce will be held invalid if it is found not valid according to the law of the worker's domicile at the time of his/her death or at the time of filing an application for spouse's benefits. POMS GN 00305.170(A)(2).

Domicile is defined as the place where a person has his/her true, fixed, and permanent home to which he/she intends to return whenever away. Every person has a domicile and can only have one at a time. POMS GN 00305.001(B)(2). In this case, although the Number Holder had only recently moved to New York at the time of his death, New York would be considered to be his domicile. There is no indication that the Number Holder maintained a home in another jurisdiction or that he regarded another location as his home. Although the Number Holder's family was still living in Panama at the time of his death, Zenaida indicated that this was a temporary situation and that they intended to join the Number Holder in New York shortly after he'd settled in. Accordingly, as the Number Holder was domiciled in New York at the time of his death, New York law applies in analyzing the validity of the Number Holder's and Pamela's divorce.

Under New York law, a divorce granted by a foreign country will be afforded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, was established by a statutory "brief contact" through the appearance of one of the parties. Kushnick v. Kushnick, 763 N.Y.S.2d 889, 892 (N.Y. Sup. 2003). However, mail order divorces, where a husband and wife attempt to confer jurisdiction upon a court of a foreign nation by executing powers of attorney to counsel residing there, and forwarding such instruments by mail without ever visiting that nation, are void. Caldwell v. Caldwell, 298 N.Y. 146, 150 (N.Y. 1948).

In this case, there is no indication that either the Number Holder or Pamela was ever present in the Dominican Republic during the time when their divorce action was filed or processed. As their divorce appears to have been conducted as the type of "mail order" divorce addressed by the Caldwell case, it is our opinion that this divorce would be considered invalid under New York law.

B. The Principle of Estoppel

Under the principle of estoppel, even though a worker's divorce would not be valid under the law of his/her domicile, the other party to the divorce may be estopped from denying its validity. The estopped party is precluded from having the requisite relationship to the worker to become entitled to benefits as his/her spouse. POMS GN 00305.175(A).

With regard to the issue of estoppel, New York courts have held that neither inaction nor delay in contesting a foreign divorce constitutes laches (negligence or undue delay in asserting a legal right or privilege). See Sorrentino v. Mierzwa, 302 N.Y.S.2d 565 (N.Y. 1969). However, while mere inaction or delay does not constitute laches, New York courts have held that an estoppel based on laches is appropriate where the lapse of time and the intervention of circumstances render it unjust for the court to aid the challenger. There is a line of case law wherein parties who took no action for extensive periods of time, during which they accepted benefits under a separation agreement, remarried themselves, or where their former spouse had remarried, were estopped on the grounds of laches from challenging a foreign divorce. See Matter of Caputo, 699 N.Y.S. 2d 86 (N.Y.App. Div. 1999); Capalbo v. Capalbo, 549 N.Y.S.2d 794 (N.Y.App. Div. 1990); Miller v. Miller, 459 N.Y.S.2d 596 (N.Y.App. Div. 1983). In the case of Farber v. Farber, 269 N.Y.S.2d 608 (N.Y.App. Div. 1966), the court dismissed a claim by the former wife that a Mexican divorce had been obtained by duress, holding that a period of three years during which time the husband remarried was "inexcusable laches".

In this case, although the Number Holder's divorce from Pamela would not be considered valid under New York law, we believe that Pamela would be estopped from denying its validity. Although the Dominican divorce was executed in 1991, Pamela waited fourteen years before contesting its validity. During that time period, the Number Holder remarried and remained married to Zenaida until his death. We believe that, under New York law, Pamela's actions would constitute inexcusable laches. Notably, Pamela does not allege that she was not aware of the Dominican divorce proceedings. Indeed, the divorce paperwork indicates that she filed a notarized power of attorney form, allowing an attorney with an office in Santo Domingo to represent her interests in the divorce. The information provided seems to indicate that Pamela did not question the validity of her divorce from the Number Holder until after his death when the Number Holder's attorney told her that he believed that she was still married to the Number Holder at the time of his death. Accordingly, as Pamela would be estopped from denying the validity of her divorce from the number holder, she is not entitled to disabled widow's benefits on the Number Holder's account. Furthermore, even if Pamela's divorce from the Number Holder had been valid, she would not be entitled to divorced disabled widow's benefits on the Number Holder's account as she was not married to the Number Holder for ten years immediately before the date on which her divorce from the Number Holder would have become effective. See Social Security Act, §§ 202(e)(1); 216(d)(1) (2006); 20 C.F.R. § 404.336(a)(2) (2006).

CONCLUSION

For the reasons stated above, it is our opinion that the divorce of Donald E. B~ from Pamela L. B~ would not be considered valid under New York law. However, based on the fourteen year delay and the intervening change in circumstances (the remarriage of Donald E. B~ to Zenaida B~) during that time, Pamela L. B~ would be estopped from denying the validity of her divorce from Donald E. B~. Accordingly, Pamela L. B~ is not entitled to disabled widow's benefits on Donald E. B~'s account. Furthermore, even if the divorce had been valid, Pamela L. B~ would not be entitled to divorced disabled widow's benefits on Donald E. B~'s account as she was not married to Donald E. B~ for ten years immediately before the date on which their divorce would have become effective.

Donna L. C~

Regional Chief Counsel

By:______________________

Heather B~

Assistant Regional Counsel

The record contains evidence of a valid foreign divorce between the NH and his first wife (the claimant) as well as NH's subsequent marriages. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. Thus, NH's marriage to his last wife is presumptively valid under NY law. This presumption may be rebutted if the claimant proves by clear and convincing evidence the fact of the absence of a divorce. The NY Family Court's decision that the Cuban divorce was void should not be binding in a subsequent administrative hearing wherein it will be determined whether the claimant is the legal widow of NH. The Family Court's finding is not determinative and the claimant can rely on it only as evidence. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to NH's marriage with his last wife will continue, and she cannot receive benefits as the NH's widow.

You have asked for advice on whether a valid marriage still exists between the claimant, Tomasa R~, and the number holder, Amado R~ ("NH"); whether the New York Family Court had jurisdiction to declare their subsequent Cuban divorce void; and thus whether Tomasa R~ is the widow of Amado R~. As we understand the facts of this case, Tomasa R~ contends that she remained the legal wife of Amado R~ until he died because the Cuban divorce was fraudulent. Based on the factual record presented to us, Tomasa has not provided clear and convincing evidence that the Cuban divorce is invalid.

FACTUAL BACKGROUND

Tomasa R~, formerly Tomasa M. J~, had two children with Amado R~ in Cuba: Amado L~ and Rosalba R~ (Ex. 5). Both Tomasa and NH were natives of Cuba, and according to Tomasa they had an agreement to get married so they could bring their children to the United States. Tomasa came to Brooklyn some time in 1956 and Amado came shortly after. Tomasa and NH were married in New York, N.Y. on September 22, 1957 in a ceremony solemnized by clergyman, Reverend Antonio G~ (Ex. 7). Tomasa and NH listed Brooklyn as the place of their residence (Ex. 7).

Tomasa and NH separated some time around 1960, and NH returned to Cuba while Tomasa remained in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May 25, 1960 (Ex. 1). The decree identifies Tomasa, represented by "Solicitor Francisco R~," as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA") explains that Tomasa was living in Brooklyn at the time of the divorce but sent power of attorney to Cuba (Ex. 3). Leonor, NH's third wife, similarly told the SSA that Tomasa signed away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in Tomasa's request for hearing Tomasa maintained that she is the legal wife of NH (Ex. 9). Tomasa denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent and denied any knowledge of the proceeding and signing her name to any consent or acknowledgment of the divorce action (Ex. 5).

On or about December 31, 1960, NH married Isabel R~, formerly Isabel P~, in Cuba (Ex. 4). They remained married for approximately twenty one years until NH brought a divorce action in Elizabeth, N.J. and the Honorable John P. W~ ordered that the marriage be dissolved on September 16, 1982 (Ex. 4). Isabel remarried on March 18, 1983 to Jose H~ and is still legally married to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's record (Ex. 12).

The record indicates that in 1963, subsequent to NH's marriage to Isabel, Tomasa instituted a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8). In this proceeding the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa R~." The Order further directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to Tomasa, it was not until she filed for this Order of Support that she became aware of the fraudulent divorce proceedings (Ex. 5).

The State of New Jersey Certificate of Marriage contained in the file demonstrates that NH was then married a third time on December 7, 1984 to Leonor M. R~ (now Leonor R~) in Elizabeth, N.J. (Ex. 10). NH died in Miami, Florida on April 27, 2002 (Ex. 11). The Certificate of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her statement to the SSA, Leonor certified that she and NH were married and living together up until the day NH passed away (Ex. 13).

After NH's death, Tomasa applied for surviving spouse benefits on NH's record (Ex. 14). On or about November 29, 2002 the SSA notified Tomasa that she was not entitled as a wife because of NH's subsequent marriages, and she was not entitled as a divorced wife because she did not meet the duration of marriage (Ex. 14). Upon reconsideration, that determination was affirmed, reiterating that the divorce has been proven and that the marriage did not last for the requisite ten years (Ex. 14). Still, Tomasa maintains that she is the legal wife of NH, entitled to widow's benefits.

ANALYSIS

In examining widow's benefit claims, the SSA must look to the laws of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A) (2004). In this case, NH apparently was domiciled in Florida at the time of his death. As such, we must determine whether Florida would recognize the existence of a valid marriage between Tomasa and NH.Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the marriage between Tomasa and NH will be considered valid if it is valid under the law of New York, where the marriage occurred.

1. The Presumption of Validity Attaching to the Amado-Leonor Marriage:

The record indicates that NH had two other marriages subsequent to his marriage to Tomasa. NH married his third wife, Leonor, in New Jersey in 1984 and remained married to her until he died in 2002. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Lee's Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor of validity of the last marriage is stronger than the presumption that the prior marriage continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either by death or legal action). This presumption 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." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to Leonor is presumptively valid under New York law, and she appears to be the legal widow of NH.

However, it is well established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the Amado-Leonor marriage may be rebutted if Tomasa provides evidence which, when weighted collectively, establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree, Tomasa must provide sufficient evidence to prove the Cuban divorce invalid in order to demonstrate that she is the widow of NH.

2. Effect of the New York Family Court's Determination:

A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a marital res subject to in rem jurisdiction, therefore a judgment determining marital status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa R~." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its face, the Family Court's decision appears to be a judicial declaration of a subsisting marriage between NH and Tomasa, which rests upon a foundation of an invalid divorce.

a. Issue of Subject-Matter Jurisdiction

In this case, there is a question as to whether the Family Court had jurisdiction to determine that the divorce is void, and thus whether that court's finding is binding on an Administrative Law Judge deciding Tomasa's entitlement to widow's benefits. The Family Court, formerly known as the Domestic Relations Court, was established and the Legislature conferred such jurisdiction upon it as was essential to permit it to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act. § 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended 2001, effective 2002). In the exercise of its limited jurisdiction the Family Court is authorized to determine whether the parties are husband and wife, but such determination is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction of the subject matter of the marriage. Consequently, New York law does not recognize a Family Court's pronouncement of marital status as a "decree of a court of competent jurisdiction rendered on the merits," and such a determination is not binding on the parties in a subsequent action outside the Family Court in which there is directly involved the question of whether the same marriage exists or has been terminated. Id. at 496.

In Loomis, the Court of Appeals of New York held that a determination by the Domestic Relations Court of the marital status of the parties is a preliminary matter to exercising or declining jurisdiction and is not binding on the parties in a subsequent action in the Supreme Court where the existence of a valid marriage is directly involved because there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for support only, the other for an adjudication of marital status). Similarly, the Family Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent administrative hearing wherein it will be determined whether Tomasa is the legal widow of NH. The Family Court's decision was only incident to its finding that NH was responsible for supporting Tomasa. Thus, the preliminary matter of the marital status in Family Court is not res judicata.

Since the jurisdiction to determine the subject of marriage, where the validity of such marriage is a primary issue, lies exclusively in the Supreme Court, the Family Court's finding is not determinative and Tomasa can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has exclusive subject matter jurisdiction over divorce actions).

b. Issue of Failure to Include an Indispensable Party

Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such an assertion. The noncompulsory nature of the court's judgment regarding marital status is evident with an acknowledgment that Isabel, NH's second wife to whom he was married at the time of the proceeding, was not a party to the action.

It is well-known that a court may always consider whether there has been a failure to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be "inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005). With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for a declaration of legal relations serves a legitimate purpose only where all persons who are interested in or might be affected by enforcement of such rights and legal relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R. § 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to third parties who should not be "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.

New York Courts have held that, where in an action by one spouse for a judgment declaring that a foreign divorce decree is null and void, it appears that subsequent to the procurement of the divorce the defendant married a third person, such third person must be joined as a party defendant, since that person is an indispensable party without whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y. 1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App. Div. 1945).

Here, NH was married to Isabel at the time of the Family Court's proceeding. Although the court's declaration of the nullity of the Cuban divorce related primarily to the marital status of NH and Tomasa, it also necessarily implied that the Amado-Isabel marriage was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel was a necessary and indispensable party without whom no effective judgment regarding marital status could have been rendered. Accord Bard, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all persons whose rights may be affected by the judgment there cannot be a final and complete determination of the controversy). The fact that Isabel was not a party to the action confirms that the court's finding of a surviving marriage is not binding in Tomasa's administrative hearing concerning her eligibility for widow's benefits. It is, thus, our opinion that the ALJ may form his own conclusion with respect to whether a marriage subsists or whether the Cuban Divorce is valid.

3. Recognition of the Cuban divorce decree

In determining whether Tomasa is the legal widow of NH, the issue of marital status is complicated by the contradictory evidence regarding the divorce. Tomasa contends that she was separated from NH for over 39 years, but was never served with divorce papers. However, NH submitted proof of the Cuban divorce when he applied for Social Security benefits. The first question to be determined is the extent to which recognition must be accorded the Cuban divorce decree in a New York court. Secondly, the possibility that the divorce may have been fraudulently obtained must be considered.

a. The Doctrine of Comity

New York courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert A. L~, American Conflicts Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce action is precluded from attacking the validity of the foreign judgment in a collateral proceeding brought in the New York courts, absent some showing of fraud in the procurement of the judgment or some showing that recognition of the judgment would violate a strong public policy of the State. See Greschler, 414 N.E.2d at 697-698.

In the case at bar, Tomasa has failed to adduce evidence demonstrating that the Cuban court did not have personal jurisdiction over her. The record includes the translation of the Cuban Decree which indicates that Tomasa was the plaintiff and was represented by Solicitor Francisco R~. Thus, her appearance, through an attorney, in the divorce action gave the Cuban court jurisdiction to grant the divorce unless such appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce decree under the doctrine of comity unless Tomasa can demonstrate fraud or a violation of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).

b. Demonstrating Fraud

The Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proof and evidence necessary to establish the right to benefits. 42 U.S.C. § 405(a) (2006). 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 (2006). 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) (2006).

Here, the record contains evidence of a valid divorce between NH and Tomasa as well as NH's subsequent marriages. This evidence conflicts with Tomasa's claim that she is the widow of NH as well as the determination of the Family Court that the Cuban divorce is void. Since Tomasa bears the ultimate burden of proving that she is entitled to benefits as NH's widow, it is her obligation to provide clear and convincing evidence that the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive. Tomasa has not produced any records which tend to show that she did not bring the divorce suit or that her power of attorney was unauthorized. Tomasa, therefore, has not carried her burden of proof. Consequently, if no further evidence is submitted, the presumption of validity attaching to NH's marriage with Leonor will continue, New York courts will give recognition to the divorce decree, and Tomasa cannot receive benefits as NH's widow.

4. Divorced Wife's Benefits

Section 202(e) of the Social Security Act provides that widow's insurance benefits may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant for a surviving divorced spouse's insurance benefit must meet several requirements: she must have been validly married to a fully insured worker for a period of at least ten years immediately preceding a final divorce; must have attained age 60, or have attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§ 402(e), 402(b)(1), 416(d)(1) (2006).

It is evident that Tomasa R~ is ineligible for divorced wife's benefits. Although she meets the second two requirements - she is 85 years of age and has never been remarried - the duration requirement has not been met. The divorce occurred in 1960, less than three years after Tomasa and NH married. Since the marriage subsisted for less than ten years, Tomasa cannot receive divorced wife's benefits on NH's account.

In conclusion, on our understanding of the current factual record, Tomasa cannot be entitled to widow's benefits on NH's account because she has not proven through clear and convincing evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts may establish that the Cuban divorce is void. However, Tomasa bears the burden of proof and if no further evidence is provided she has not met her burden.

New York law states a foreign divorce will not be recognized if none of the parties were residents of the foreign country. NH's divorce from his first wife was invalid and his subsequent marriage to claimant is void. Florida looks to the jurisdiction where the marriage took place to determine its validity. Florida courts would decline to recognize the marriage as valid, thus the claimant could not inherit a spouse's share of NH's personal property if he were to die without a will.

QUESTION

When determining entitlement for Lydia P. A~ (Claimant) to benefits as the spouse of Florida resident Daniel A~ (NH), should the Social Security Administration (SSA) apply any provisions of New York or California law to determine whether NH's Dominican Republic divorce from Gloria F. A~ (first wife) would be recognized in Florida as a valid divorce?

ANSWER

For the reasons stated below, it is our opinion that the divorce obtained in the Dominican Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and Claimant has not presented sufficient evidence to qualify for benefits as a deemed spouse.

BACKGROUND

According to the file, NH married his first wife on October 20, 1969. NH and his first wife separated some time in 1985. On September 29, 2004, while NH resided in New York and his first wife resided in California, NH obtained a divorce in the Dominican Republic without personally appearing in the Dominican Republic or being domiciled there. NH's first wife states she never divorced NH. On December 15, 2004, NH married Claimant in New York. NH and Claimant currently reside in Florida. On June 8, 2005, Claimant filed an application seeking spouse's benefits on NH's account.

DISCUSSION

The Social Security Act (Act) provides that “an applicant is the wife, husband, widow, or widower” of an insured individual if “the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." § 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of these three methods.

1. a. 

   Claimant and NH Were Not Validly Married.

   At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. It is well established in Florida that a presumption of validity attaches to one's last marriage, and this presumption is referred to as "one of the strongest known to the law." King v. Keller, 117 So. 2d 726 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. In this case, NH's first wife states she and NH never divorced.

   However, once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in New York, we must look to that state's law.

   Under New York law, once a ceremonial marriage has been performed, there is a strong presumption in favor of holding the latest ceremonial marriage valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the latter marriage becomes "stronger and stronger where a substantial injustice would be created by invalidating that marriage." See Grabois, 89 F.3d at 100; see also 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).

   Here, a question remains regarding the validity of NH's divorce from his first wife, which affects the validity of his subsequent marriage to Claimant. According to New York law, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living and the prior marriage has not been dissolved legally." Gonzalez v. Gonzalez, 34 Misc.2d 193, 194 (N.Y. Sup. Ct. 1962). In this case, NH sought a divorce from his first wife in the Dominican Republic while residing in New York. New York law states that a foreign divorce will not be recognized if none of the parties were residents of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither NH nor his first wife resided in the Dominican Republic at the time of the divorce. Moreover, neither party personally appeared in the Dominican Republic for the divorce proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent marriage to Claimant is void. Neither Florida nor New York would look to California law to determine the validity of Claimant's marriage.

2. b. 

   Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

   Claimant could also be entitled to spousal benefits upon a finding that Florida courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.

   If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity. New York would not recognize the validity of the marriage of NH and Claimant. Because we believe New York would not recognize Claimant's marriage as valid, we believe that Florida courts would also decline to recognize their marriage as valid. Therefore, we further feel Florida would not find Claimant was NH's surviving spouse within the meaning of the statute.

   It is our opinion that Claimant could not inherit a spouse's share of NH's personal property if he died intestate, because she was not his lawful wife. Therefore, Claimant is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A) of the Act.

3. c. 

   The Commissioner Could Not Find A Valid Deemed Marriage.

   As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of the ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Here, there was a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that Claimant had knowledge of NH's prior marriage and participated in his acquiring the foreign divorce. However, it is unclear from the records provided whether Claimant had knowledge that the foreign divorce would not be recognized as valid. Because there is insufficient evidence in the record, we are unable to determine that Claimant meets the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development may be appropriate.

CONCLUSION

Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is void, and she has not met her burden of proving she qualifies as a deemed wife.

Mary Ann S~

Regional Chief Counsel

By:

Jennifer P~

Assistant Regional Counsel