This is in response to your request for our assistance in determining whether the
Mexican divorce between the wage earner, James W. R~ , and his first wife, Helen R
~ L ~ ("Helen") was valid. We conclude, for the reasons set forth below, that Ohio
would not consider the Mexican divorce decree valid.
Our review of the documents contained in the claims folder discloses the following
facts. Helen G. B ~ married James W. R ~ on May 25, 1946 in Parkersburg, West Virginia.
On April 17, 1970, James W. R ~ , obtained a divorce in Juarez, Mexico from Helen.
The decree itself stated that both parties had submitted to the jurisdiction of the
court, implying that neither party was domiciled in Mexico at the time of the divorce.
James R ~ in a written report conceded that neither Helen nor he were domiciled in
Mexico, but stated that he believed Helen had submitted a written statement to the
court. He claimed, however, that the divorce was valid because the Mexican attorney
handling the case had so advised him. Helen, in a June 30, 1980 statement, indicated
that she knew nothing about the Mexican court action until after it took place, and
that she considered the decree invalid when she learned of it because she was not
a participant and it took place in Mexico. Moreover, she denied submitting a written
statement to the court.
In further support of her position, Helen stated that an Ohio court subsequently declined
to license her to remarry. 1/ Nonetheless, Helen did remarry; she married James D.
L ~ on September 28, 1972 in Parkersburg, West Virginia. James L~ and Helen resided
in Ohio during their "marriage" which was ended by James L ~ death on November 29,
1978. Helen applied for wife's insurance benefits on James L ~ account on April 30,
1976, in that application, Helen stated that she was divorced from James R~ .
James R ~ also remarried after the 1970 Mexican divorce. Immediately following his
divorce, James R ~ married Ethel R ~ ("Ethel") on June 15, 1970 in Parkersburg, West
Virginia. 2/ Ethel was divorced from James R ~ in Athens, Ohio on June 10, 1975. Shortly
thereafter, on June 16, 1975 James R ~ married Lena S ~ in St. Mary, West Virginia.3/
The marriage application indicates that James R ~ acknowledged his two previous marriages
which he stated were ended in divorce.
James R ~ died on July 19, 1980 4/ in Parkersburg, West Virginia although he was still
domiciled in Ohio. On August 15, 1980, Helen filed an application for widow's benefits
on James R ~ account.5/ In this application Helen describes her marriage to James
D. L ~ as her last marriage which ended by his death. She describes her marriage to
James R ~ , although occurring prior to the James L ~ marriage, as a current marriage.
She also lists James R ~ subsequent marriages on her application. Helen died on March
31, 1981. Thus, even if she was James R ~ widow, her benefits on his account would
have ceased at her death. Accordingly, at issue is only a Mexican divorce, we would
have requested a determination by your office if there would have been any difference
in the amount of her benefits as a widow or a surviving divorced wife. 20 C.F.R. SS404.335,
404.336. However, in this case, although you only question the validity of the Mexican
divorces second and third "wives" who will be significantly impacted by our determination
concerning the validity of the Mexican divorce.6/ Specifically, both Ethel and Lena
also filed for benefits on James R ~ account.
The precise issue presented to us concerns whether Helen would have been considered
the surviving divorced wife or the widow of James R ~ . Under Section 216 (h)(A) of
the Social Security Act, it is necessary to determine whether Ohio, as the domicile
of the wage earner at the time of his death, would recognize the validity of the Mexican
divorce in question. As both Helen and James R ~ were domiciled in Ohio 7/ at the
time of the Mexican divorce, Ohio would determine the validity of the divorce under
The Mexican divorce decree states that jurisdiction was obtained over the matter because
of James R ~ personal appearance and Helen's appearance through an attorney. As noted
previously, Helen denies that she ever received notice of the proceedings or retained
an attorney to appear on her behalf.8/ Nonetheless, there is no question that neither
party was domiciled in Mexico at the time of the divorce. Indeed, James R ~ so admits
in one of his statements.
We believe that Mexican divorce decree invalid under Ohio law. The courts of Ohio
will not recognize the validity of a divorce decree granted by a foreign country in
which neither of the parties was domiciled. Linck v. Linck, 288 N.E.2d 347 (Common Pleas 1972); W , Elizabeth, , RA V (A~) to Req. Rep. Great
Lakes Program Service Center, 10/20/81. As noted above, both parties agree that neither
was domiciled in Mexico at the time of the divorce. The decree does state that both
parties appeared, James R ~ personally and Helen by counsel. Even assuming this to
be true, we do no believe that Ohio would accept the validity of such a bilateral
divorce given the lack of domicile of either party in Mexico. See Bobala v. Bobala, 33 N.E.2d 845 (Ohio App. 1940). More important, the record fails to support the
factual recitals of the decree regarding Helen's appearance. There is no evidence
of Helen having received notice of the proceedings or having granted a power of attorney.9/
In Yoder v. Yoder, 263 N.E.2d 913 (Ohio App. 1970), the Mexican divorce decree under challenge stated
that the defendant agreed to the divorce. There was no evidence to this effect, however.
The court held that where evidence renders important factual recitals of a foreign
divorce decree inaccurate, the decree is not entitled to recognition. Accordingly,
we believe the divorce to be invalid under Ohio law.
Not withstanding the invalidity of the divorce, we must consider what impact James
R ~ subsequent marriages may have had on Helen's marital status. Under Ohio law, where
there are two competing marriages, the first is presumed to continue in the absence
of evidence of its dissolution by death or divorce. Domany v. Otis Elevator Company, 369 F.2d 604, 610-612 (6th Cir. 1968). However, once there is evidence of dissolution
of the first marriage by divorce, the divorce is presumed valid in the absence of
proof of its invalidity. Linck v. Linck, supra; S , John, D-16227 , RA V (K~) to Reg. Rep., BRSI, Mid- Atlantic Program Service
Center, Philadelphia, 12/12/75. For the reasons discussed above, such proof as to
its invalidity does exist.
However, it must further be determined whether, despite the invalidity of the divorce
under Ohio Law, the divorce would nonetheless be immune from attack in the Ohio Courts.
If the decree would be immune from attack, then Helen would have been considered a
surviving divorced spouse. In our opinion, Helen would not have been estopped from
denying the validity of the decree. In Ohio, equitable estoppel may be invoked as
a defense only when each of five specific elements is present. These elements as noted
by the United States District Court for the Northern District of Ohio, while applying
Ohio Law, are:
1. False representation or concealment of material fact by words, acts, conduct or
silence, where there is a duty to speak,
2. By a person with knowledge, actual or constructive, of the true facts,
3. To a person without as great or sufficient knowledge,
4. With the intention that the misrepresentation or concealment shall be acted on
by the latter person,
5. Who must so rely and act thereon, or omit to do some act, to his injury or prejudice.
A change of position which will fulfill this element of estoppel must be actual, substantial
and justified. (citations omitted)
New York Central Railroad Co. v. General Motors Corp., 182 F. Supp. 273 at 288 (N.D.O., 1960). The court in that case further stated:
Equitable estoppel precludes a party from asserting certain facts where the party,
by his conduct, has induced another to change his position in good faith reliance
upon that conduct. See London: Lancashire Indenin. Co. v. Fairbanks Steam Shovel Co. (1925), 122 Ohio St. 136, 152, 147 N.E. 329. . . . Because no detrimental reliance
is shown upon the record, the court of Appeals erred in estopping appellants from
asserting the personal nature of a special use permit.
The State ex rel. Cities Service Oil Company v. Orteca, 409 N.E.2d 1018 at 1020 (Ohio 1980. See, Van DeRyt, 215 N.E.2d 698 (Ohio 1966).
There is no evidence in the record to indicate that James R ~ three wives knew each
other or that Lenna or Ethel knew of Helen's remarriage after the Mexican divorce.
However, assuming that they did know each other, the only evidence in the record which
might suggest an implicit misrepresentation by Helen to Ethel or Lena concerning the
validity of the Mexican divorce is her remarriage after the Mexican divorce. As discussed
below, we do not believe this is sufficient to estop Helen from denying the validity
of the Mexican divorce. Furthermore, there is no evidence to suggest that Helen's
actions were intended to influence either Ethel or Lena or that they so relied upon
Helen's remarriage. Thus, as least elements four and five discussed above are not
present in this case.
Moreover, regarding James R ~ second marriage, to Ethel, there is no evidence of any
hardship resulting from the delay of Helen in challenging the divorce. Since Ethel
and James R ~ were married immediately after the Mexican divorce and since Ethel accompanied
James R ~ were married immediately after the Mexican divorce and since Ethel accompanied
James R ~ to Mexico when he obtained the divorce, we do not believe that it could
reasonably be argued that Helen's failure to challenge the divorce prejudiced Ethel,
See Van DeRyt v. Van DeRyt, supra at 705.
With respect to James R ~ third marriage, to Lena, the question of prejudice to Lena
is a closer question because James R ~ did not marry her until 1975, five year after
the Mexican divorce. However, in our opinion Helen would still not have been estopped
from denying the invalidity of the Mexican divorce. At the time of her marriage to
James R ~ Lena knew not only of James R ~
previous marriages, but also knew that he obtained a Mexican divorce from Helen, 10/
Furthermore, the evidence in the record indicates that it is very unlikely that Helen
could have known in advance about James R ~ marriage to Lena because Lena indicated
that they went to West Virginia to get married; they did not want an announcement
of the marriage in the newspapers as James R ~
has just received his divorce from Ethel.11/
Thus, it is unlikely that Helen could have warned Lena. But, more importantly, Lena
conceded that she was aware of James R ~
Mexican divorce. Any ignorance that existed on the part of Lena was with respect to
law and not with regard to any essential fact. Smith v. Smith, 50 N.E.2d 889 (Ohio App. 1943) involved a challenge by a husband to the validity
of his marriage. His wife has obtained a Mexican divorce and than married her second
husband, the plaintiff in this case. We knew that she had obtained a Mexican divorce
from her first husband. In rejecting the wife's claim that her second husband was
estopped from challenging the validity of the Mexican divorce, the court held:
Both parties knew the essential facts - the defendant perhaps more of the details
than the plaintiff, but so far as the doctrine of estoppel is concerned, there is
no distinction. Whatever ignorance existed was as to the law.
Id, at 894. Accordingly, we do not believe Helen would have been estopped from denying
the validity of the Mexican divorce.
Finally, we wish to address the issue of Helen's April 4, 1976 application for wife's
benefits on the account of her second "husband," James L ~ Helen was awarded benefits
effective January, 1976. In giving information concerning her claim for benefits on
James R ~ account, Helen indicated that she knew of a legal impediment of her marriage
to James L ~ and believed that she was committing bigamy by him. 12/ See discussion supra at p. 1. However, in her application for wife's benefits on James
L 's account, she stated that her marriage to James R ~
had ended in divorce. As Helen apparently knew this statement was false, we recommend
that your office conduct a fraud investigation. We further recommend that any benefits
which Helen's estate may be entitled to for the period during which Helen survived
James R ~ as his widow be offset against benefits received as James L ~ wife on his
1/ While under some circumstances we might consider an Ohio court's opinion binding,
we are unable to do so in this case for two reasons: 1) it is unclear whether a court
order was actually issued, and 2) we do not know the facts which were presented to
the court or the exact basis for the decision, if there was one.
2/ In a statement, Ethel claimed that she accompanied James R ~ to Mexico at the time
of his divorce from Helen.
3/ Both Ethel and Lena had been married previously and divorced. There is evidence
in the record to suggest that either prior divorce was invalid.
4/ James R ~ had applied for disability benefits on May 19, 1980, but died before
a determination had been made on his application.
5/ She also filed mother's benefits for her children, but that application is not
6/ As noted in September 17, 1980 report of contact by a claim representative, "Since
entitlement of Ethel A. R ~ would be precluded should W/E's first divorce be determined
invalid, and since Lena S. P~ R ~ entitlement as a deemed widowed mother on this account
could be precluded should Helen G. B
L ~ be entitled as a legal widow on this account . . .," the validity of the Mexican
divorce affects several other determinations.
7/ Helen, in a statement by claimant, said that she was domiciled in Ohio on April
17, 1970, the time of the divorce. James R ~ in a marriage license stated that he
was domiciled in Ohio. This marriage took place only a few days after the Mexican
divorce from Helen.
8/ The attorney allegedly representing Helen confessed to all allegations made by
James R ~ against Helen including threats, cruelty, and ill-treatment of their children.
It seems unlikely that an attorney representing Helen would concede to those types
9/ See discussion, Supra at 2-3. However, it is unclear from the record the date or
the manner in which she heard about the divorce. Apparently, she did know about it
at the time of her second marriage to James L ~ in 1972
10/ James R ~ , in a June 28, 1980 statement, indicates that he believed he informed
Lena of his Mexican divorce from Helen, but was not sure. However, in Lena's June
26, 1980 statement and a report of contact, Lena acknowledged that she knew of James
Mexican divorce prior to their marriage. Lena further states that she believed the
divorce was valid because Mexico "is right next to the United States."
11/ There is no question that James R ~ divorce from Ethel in Ohio where both were
domiciled was valid.
12/ In a September 17, 1980 statement, Helen claimed that "I do not wish to apply
for benefits as the surviving disabled widow of James D. L ~ " Helen's apparent failure
to apply for widow's benefits on James L ~ account does not erase her previous false
statements or the benefits she received as his wife.