You asked whether a claimant validly divorced her second husband in the Dominican
Republic so as to qualify for widow's insurance benefits as a surviving divorced spouse
of her first husband, the number holder, who was a resident of North Carolina at the
time of his death.
We believe a Social Security Administration (SSA) adjudicator could not find the claimant
eligible for widow's insurance benefits as a surviving divorced spouse of the number
holder because the Dominican Republic divorce from her second husband is invalid under
North Carolina law.
Rozann C~ (Claimant) and Orville C~ (NH), married on May 4, 1968, in South Carolina.
Claimant divorced NH on August 11, 1995, in North Carolina. NH died on February 4,
2006, in North Carolina. Claimant married Ernest G. F~ on February 9, 2002, in North
Carolina. Claimant and Mr. F~ went to the Dominican Republic on February 6, 2009,
and on February 9, 2009, both personally appeared before a Dominican court judge who
issued a final divorce decree. Claimant was sixty-five years of age at the time she
sought the divorce in the Dominican Republic. The Dominican divorce decree acknowledges
Claimant and NH were married, resident, and domiciled in North Carolina at the time
of the alleged divorce. Claimant and her second husband apparently continue to reside
at the same North Carolina address as before the issuance of the Dominican divorce
To be eligible for widow's insurance benefits under section 202(e) of the Social Security
Act (Act), a claimant who is not the widow of an insured individual must be the insured
individual's "surviving divorced wife" as that term is defined at section 216(d) of
the Act. See Act §§ 202(e)(1), 216(d)(2), 42 U.S.C. §§ 402(e)(1), 416(d)(2); 20 C.F.R. § 404.336
(2009). A claimant can qualify as the surviving divorced wife of an insured individual
if she was married to the insured individual for a period of ten years immediately
before the date the divorce became effective, is at least sixty years old, applied
for benefits, is not entitled to an old age benefit that is equal to or larger than
the insured person's primary insurance amount, and is unmarried. See Act §§ 202(e)(1), 216(d); 20 C.F.R. §§ 404.336.
The question you raise is whether Claimant is unmarried, i.e., divorced from her second
husband, as required to obtain divorced spouse's benefits. See Act § 202(e)(1)(A), 20 C.F.R. § 404.336(e). The Act and regulations do not address
which laws apply to determine the validity of a divorce. To determine whether a claimant
and a deceased, insured individual were validly married, SSA looks to the laws of
the state where the insured had a permanent home when he died. See Act § 216(h)(1)(A)(i), 20 C.F.R. § 404.345 (2009). Although the validity of the marriage
and divorce of Claimant and NH are not at issue here, the essential events occurred
in North Carolina: the divorce of Claimant and NH, the location of NH's permanent
home at his death, and the marriage and residence of Claimant and her second husband
at the time of the alleged divorce and subsequent to the alleged divorce.
The Program Operations Manual System (POMS) explains how SSA determines the validity
of a divorce. See POMS GN 00305.170. "A divorce is valid if it was granted by the court in whose jurisdiction at least
one of the parties was domiciled at the time of the divorce." POMS GN 00305.170(A)(1). However, "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). The POMS also indicates a divorce is likely invalid when the evidence indicates
neither party was a resident of the country in which the divorce was granted and a
party went to the jurisdiction solely for the purpose of obtaining a divorce. See POMS GN 00305.170(A).
Based on the above, we believe the relevant inquiry is whether the Dominican divorce
decree is valid under North Carolina state law. North Carolina statutes do not appear
to specifically address the effect of a divorce obtained in another jurisdiction.
However, case law is on point. The Supreme Court of the United States, in considering
a case arising out of North Carolina, held that a state need not recognize foreign
divorce decrees of parties domiciled in one state, but who received a divorce decree
in a state other than that of their domicile. See Williams v. North Carolina, 325 U.S. 226, 238-39 (1945) ("We conclude that North Carolina was not required to
yield her State policy because a Nevada court found that petitioners were domiciled
in Nevada when it granted them decrees of divorce. North Carolina was entitled to
find, as she did, that they did not acquire domicils in Nevada and that the Nevada
court was therefore without power to liberate the petitioners from amenability to
the laws of North Carolina governing domestic relations."). The Court had before it
a judgment of the Supreme Court of North Carolina which recognized that domicile of
at least one of the parties in the state where and when the proceedings were instituted
is essential in a divorce action. See State v. Williams, 29 S.E.2d 744, 750 (N.C. 1944). The North Carolina court held Nevada divorce decrees
were "ineffectual to sever the marriage ties" because the parties were domiciled in
North Carolina when they brought their actions for divorce in Nevada. Id. at 751.
North Carolina also has held that a divorce obtained in a foreign country is ineffectual
when the parties are domiciled in North Carolina. In Mayer v. Mayer, 311 S.E.2d 659, 664 (N.C. Ct. App. 1984), review denied, 321 S.E.2d 140 (N.C. 1984), the court declared a Dominican divorce invalid. See Atassi v. Atassi, 451 S.E.2d 371, 374 (N.C. Ct. App. 1995) (describing Mayer as North Carolina's seminal case on the recognition of divorces obtained in foreign
countries). The Mayer court noted the full faith and credit clause of the United States Constitution had
no application to foreign judgments. See Mayer, 311 S.E.2d at 663. The court also noted a court could recognize a foreign divorce
based on principles of comity, but recognition of the divorce may be withheld when
the foreign court lacked a sufficient jurisdictional basis or the divorce violated
the public policy of the state. See id. at 663-64.
In applying principles of comity, the court found the divorce invalid on both jurisdictional
grounds and public policy grounds. See id. at 664. The court noted the Dominican court had no jurisdiction over the parties
because neither party had any connection with the Dominican Republic other than the
wife's five-day stay there to obtain the divorce. See id. The court concluded by noting "The great weight of authority in this country is that
divorces granted in foreign countries to persons who are domiciliaries of the United
States are not valid and enforceable." Id. at 664. The court also concluded the Dominican divorce decree offended "this State's
public policy against the hasty dissolution of marriages" embodied in the laws of
North Carolina governing divorce which require "proof that the parties had lived separate
and apart for one year or more." Id. at 664-65; see N.C. Gen.Stat. Ann. § 50-6 (West 2009).
In this case, both Claimant and her second husband were residents of North Carolina
at the time of the purported divorce in the Dominican Republic, and apparently thereafter,
and the Dominican divorce decree even specified as much. The evidence indicates the
parties went to the jurisdiction solely for the purpose of obtaining a divorce. Thus,
we believe a North Carolina court would conclude the Dominican divorce decree is invalid
on jurisdictional grounds. In addition, we believe a North Carolina court would find
that the Dominican divorce in this case is against North Carolina's public policy
requiring the parties to live separate and apart for a year or more before obtaining
a divorce. See N.C. Gen.Stat. Ann. § 50-6; Mayer, 311 S.E.2d at 665. Therefore, we believe North Carolina would not recognize Claimant's
Dominican divorce. This conclusion is also consistent with POMS GN 00305.170(A), which indicates a divorce is likely invalid when the evidence indicates neither
party was a resident of the country in which the divorce was granted and a party went
to the jurisdiction solely for the purpose of obtaining a divorce.
We believe a North Carolina court would conclude the Dominican divorce is invalid
and Claimant is not unmarried. Therefore, an SSA adjudicator could not find Claimant
eligible for widow's insurance benefits under section 202(e) of Act as a surviving
divorced wife on the account of NH.
Mary Ann S~
Regional Chief Counsel
Haila N. K~
Assistant Regional Counsel