TN 8 (01-16)
PR 06210.042 Pennsylvania
A. PR 16-026 Validity of Religious Divorce between the Claimant and deceased NH
DATE: November 17, 2015
The NH and the Claimant were not divorced under Pennsylvania law at the time of the NH’s death. Although the Claimant obtained a religious divorce from a rabbinical organization based in Philadelphia, Pennsylvania, prior to the NH passing away, this decree does not have the force of law. Courts in the United States traditionally do not recognize a divorce decree from a religious organization as valid and legally binding and in both Pennsylvania and Israel, a divorce decree from a rabbinical court in Pennsylvania does not have the force of law. Thus, based upon our review of Pennsylvania law and the facts you provided to us, we believe the NH and the Claimant were not legally divorced at the time of NH’s death. The Claimant may be considered a surviving legal spouse by the Agency.
On October XX, 2015, you requested a legal opinion regarding whether B~ (Claimant), and E~ (NH), were divorced under Pennsylvania law at the time of the NH’s death in December 2012.
As discussed more fully below, our opinion is that the NH and the Claimant were not divorced under Pennsylvania law at the time of the NH’s death. Although the Claimant obtained a religious divorce from a rabbinical organization based in Philadelphia, Pennsylvania, prior to the NH passing away, this decree does not have the force of law.
The Claimant and the NH married on July XX, 2006, in Pennsylvania. Approximately four years later, the NH left the Claimant and moved to Israel. On March XX, 2011, the Claimant obtained a “Get”—a religious divorce decree recognized in the Jewish faith—from Orthodox Beth Din, a religious organization based in Philadelphia. The decree, which is written in Hebrew, is a typewritten form with information specific to the Claimant’s situation handwritten within blanks. Based on a translation obtained from the Library of Congress, the decree states that the Claimant may marry again, but “especially after she receives a government permit.” The Claimant also attempted to obtain a civil divorce from the NH in Pennsylvania, but the NH did not cooperate, and she did not pursue the matter further.
Meanwhile, in Israel, the NH married M~ on August XX, 2011. Based on information provided by M~, the NH did not disclose his previous marriage to the Claimant when he married M~.
In December 2012, the NH passed away. Subsequently, the Claimant and M~ each applied for widow’s insurance benefits. The Agency determined that M~ is entitled to surviving spouse benefits because, regardless of the status of the marriage between the NH and the Claimant, M~ provided proof that she entered into her marriage with the NH in good faith. Likewise, M~’s status as a deemed surviving spouse does not affect the Claimant’s status vis-a-vis the NH, because M~ may be a surviving “deemed spouse” and the Claimant may be considered a surviving “legal spouse” by the Agency. See 42 U.S.C. § 216(h); 20 C.F.R. § 404.335 (“How do I become entitled to widow’s or widower’s benefits?”); SSA Program Operations Manual Systems (POMS) RS 00207.001 (“Widow(er)’s Benefits Definitions and Requirements”). Thus, the outstanding issue is whether the Claimant and the NH were legally divorced at the time of the NH’s death.
Courts in the United States traditionally do not recognize a divorce decree from a religious organization as valid and legally binding. See In re Atiram, 906 N.Y.S.2d 777 (N.Y. Sur. Dec. 16 2009) (holding that a “Get” is not recognized as a valid divorce under New York law); Shikoh v. Murff, 257 F.2d 306 (2d Cir. 1958) (discussing various cases, and holding that a divorce issued by a religious organization did not have the force of law); Falkoff v. Sugerman, 26 Ohio N.P. (N.S.) 81 (Ohio Ct. Com. Pl. 1925) (“[N]o state in the union permits any ecclesiastical authority to grant divorces. It is an un-American doctrine”). The only Pennsylvania authority on the issue is very dated and from a trial level court, but likewise finds that a divorce decree from a religious organization in the United States cannot decree a valid divorce. See Commonwealth v. Gravinow, 11 Pa. D. 654, 1902 WL 3120 (Phila. Cty. Ct. 1902) (holding that a religious divorce decree would not have been valid in Pennsylvania).
An exception to this general rule is a situation where the divorce decree from the religious organization would have the force of law in another jurisdiction. See Shikoh, 257 F.2d at 308-09; Gravinow, 1902 WL 3120 (finding the defendant not guilty of bigamy because he procured a religious divorce in Russia, which was recognized as a valid divorce by the Russian government; thus, the defendant was not married at the time he entered into the allegedly bigamous marriage). In Shikoh, the court drew a specific distinction between religious divorces procured within a jurisdiction that would recognize the religious divorce as a legal divorce, and religious divorces procured in the United States. Id. The court held that the former would be a valid divorce, but the latter would not. Id.
In light of Gravinow, a Pennsylvania court likely would not recognize the divorce decree received from a rabbinical organization located in Philadelphia as valid and legally binding because the religious organization has no legal authority in Pennsylvania. Further, no foreign jurisdiction would recognize the divorce as legally binding. Based on the available facts, the only other possible jurisdiction that could deem the decree valid would be Israel because the NH was living there at the time the decree was issued. However, a divorce decree obtained outside of Israel would only be enforceable in Israel if it also was enforceable at law in the country where it was issued. See Foreign Judgments Enforcement Law, 5718-1958, § 11(a), 12 Laws of the State of Israel 82 (5718-1957/58). Thus, in both Pennsylvania and Israel, a divorce decree from a rabbinical court in Pennsylvania does not have the force of law. This conclusion is consistent with the reasoning in Shikoh and Gravinow, where the courts concluded that a divorce decree obtained from a religious organization within the United States would not be valid.
Additionally, this conclusion is further supported by the language in the divorce decree itself. The decree presupposes that an additional “government permit” would be necessary for the Claimant to remarry. This statement appears to recognize that American courts would not consider the decree to have legal effect without some additional legal process.
Thus, based upon our review of Pennsylvania law and the facts you provided to us, we believe the NH and the Claimant were not legally divorced at the time of NH’s death.
Acting Regional Chief Counsel
By: David E. Somers, III
Assistant Regional Counsel
B. PR 99-101 Validity of Mexican Divorce and Second Marriage, Number Holder: G~ SSN: ~
In Pennsylvania, a prerequisite for judicial recognition of a foreign divorce is that the party seeking the divorce must have resided in the state or country for a minimum period of residency as determined by the local authority and the residency be accompanied by domiciliary intent. For a Mexican divorce decree to be invalid, it must be shown that: 1. the respondent was not in Mexico at the time of the proceedings; 2. the respondent was never properly served with process; 3. the respondent was not represented by counsel; and 4. the cause of action did not arise in the foreign jurisdiction. Under Pennsylvania s Divorce Code today, the validity of a divorce decree cannot be questioned in any court after the death of either party to the proceeding.
Usually a party to the divorce will be estopped from challenging the validity of a divorce if he/she obtained the divorce, accepted benefits, e.g., alimony, remarried, agreed to procuring the divorce, is guilty of laches, or acquiesced in the divorce over a long period of time with knowledge of its jurisdictional defect.
You have requested an opinion on whether the Mexican divorce obtained by G~ from his first wife is valid under Pennsylvania law, and if so, whether Pennsylvania courts would recognize the validity of the subsequent marriage between G~ and I~ based on the doctrine of estoppel, and, therefore, entitling I~ to receive widow's benefits, a disability insurance benefits (DIB) underpayment, and a lump sum death payment due on G~'s record.
As we understand the facts, G~, the deceased insured, died on May XX, 1995, while domiciled in Pennsylvania. On August XX, 1959, B~ married G~ in a civil ceremony in New York. G~ obtained a Mexican divorce from B~ on May XX, 1970. He appeared personally at the proceedings in Mexico. B~ did not appear, but was represented by counsel after having been served with the divorce papers and answering the complaint.
G~ then married I~ in a civil ceremony on May XX, 1970. They separated (date unknown) and G~ thereafter lived with B~ until his death in May 1995. B~ did not marry anyone after her divorce from G~.
B~ filed a DIB-after-death claim in May 1995, as well as a lump sum death claim and a claim for the underpayment due on G~'s record ($4627). B~ was paid the $255 lump sum benefit. Her claim for the underpayment, however, was denied in May 1997 because of lack of evidence showing that she was the legal spouse of G~ at the time of his death.
I~ did not remarry after G~'s death. On November XX, 1995, she filed an application for all benefits. She was awarded surviving divorced wife's benefits on the record of her first husband, T~, effective November 1995. You have already determined that I~ cannot qualify as a deemed spouse for benefits on G~'s record because she was not living with him at the time of his death.
The questions presented are whether the Mexican divorce is void under Pennsylvania law, and what effects the validity or invalidity of the divorce has on I~'s status for social security purposes, particularly her entitlement to the underpayment.
Pursuant to § 216(h)(1)(A) of the Social Security Act, a claimant is considered to be the widow of a deceased wage earner if the courts of the wage earner's domicile at the time of his death would find that the claimant and the wage earner were validly married when he died. In the absence of a valid marriage, eligibility may still be found if the claimant has the same status respecting the devolution of intestate personal property as a legal spouse. Since G~ died a Pennsylvania domiciliary, I~'s marital status must be evaluated under Pennsylvania law.
A. Validity of the Mexican Divorce Decree.
Generally, a Mexican divorce decree will be recognized by Pennsylvania under the doctrine of comity, unless it is shown to be invalid under Pennsylvania law. Thompson v. Yarnell, 169 A. 370, 373 (1933). In Pennsylvania, for a Mexican divorce decree to be invalid, it must be shown not only that the respondent was not in Mexico at the time of the proceedings, but that she was never properly served with process, was not represented by counsel, and that the cause of action did not arise in the foreign jurisdiction. Id. Furthermore, a prerequisite for judicial recognition of a foreign divorce is that the party seeking the divorce must have resided in the state or country for a minimum period of residency as determined by the local authority and the residency be accompanied by domiciliary intent.
Sargent v. Sargent, 307 A.2d 353 (1973).
In our opinion, it appears that the Mexican divorce decree at issue was valid under Pennsylvania law. B~ was served with process and she was represented by counsel in the divorce proceedings. Moreover, there is no evidence, at this point, to suggest that G~ did not satisfy the necessary residency requirements, or that his residency was not accompanied by domiciliary intent. Indeed, presumably, G~ met the residency requirements because the divorce decree was granted by the Mexican court. It is very likely then, in the absence of any other facts, that a Pennsylvania court will find the Mexican divorce valid. In fact, under Pennsylvania's Divorce Code today, the validity of a divorce decree cannot be questioned in any court after the death of either party to the proceeding, 23 Pa.C.S.A. § 3331.
Accordingly, based on the above facts, it appears that Pennsylvania would recognize the Mexican divorce as valid.
B. B~ Estopped from Challenging the Divorce.
Even if it could be established that the Mexican divorce is invalid under Pennsylvania law, it appears that B~ would still be estopped from challenging its validity.
In Lowenschuss v. Lowenschuss, 579 A.2d 377, 381 (1990), the Superior Court of Pennsylvania specifically held that it was erroneous to decide first whether a divorce was valid and then whether the subsequent marriage was valid. Rather, the Court stated that the proper approach is to first consider whether the spouse is estopped from raising the issue of the validity of the divorce and the present marriage. Id. If the spouse is estopped, the inquiry is at an end, and there is no need to determine the validity of the divorce. Id.
Pennsylvania courts have a long history of applying the doctrine of estoppel to a wide variety of cases involving attacks on invalid divorces. See Diamond v. Diamond, 461 A.2d 1227 (1983) (holding that husband was estopped from challenging the invalidity of a "mail order" divorce he obtained against wife); Rosen v. Sitner, 418 A.2d 490 (1980) (holding that a husband, who took advantage of a prior Mexican divorce decree in order to marry his wife and having lived with her for seven years, could not later assert the decree was invalid); Sargent v. Sargent, 307 A.2d 353 (1973) (holding that a wife is not estopped from challenging the validity of Mexican divorce where she was not a party to the divorce).
Several circumstances will call for the application of the estoppel doctrine. Lowenschuss, 579 A.2d at 382. For example, estoppel will usually be found when the divorce was obtained by the very party attempting to attack it. Id. Estoppel may also be found where there has been a long acquiescence in the divorce with knowledge of its jurisdictional defect and neither party has contested it. Id. Acceptance of benefits, usually alimony, will also often foreclose an attack, as will remarriage after the defective decree, either by the person attacking the decree, or by the other party. Id. Finally, the Divorce Code also recognizes that a party who has agreed to the procurement of a divorce, or who is guilty of laches, is generally barred from making a collateral attack upon the validity of the decree. 20 Pa.C.S.A. § 3333.
In this case, there were several factors that could support a finding that B~ is estopped from challenging the Mexican divorce. First, although she did not initiate the divorce proceedings, it was clear that she participated in its procurement. She was aware of the divorce proceedings in Mexico.
She filed an answer to the divorce complaint, and she was represented in the proceedings by an attorney.
There was also a long period of acquiescence. The divorce was obtained in May 1970, and to this date, over twenty-five years later, B~ has never challenged the validity of the divorce. Furthermore, even though B~ never remarried after the divorce, G~ did marry I~ which indicated a belief, at least on G~ and I~'s part, that the Mexican divorce was valid.
Accordingly, there was sufficient evidence to suggest that Pennsylvania courts will find B~ estopped from challenging the Mexican divorce.
C. Second Marriage Is Presumed Valid.
When evaluating the validity of a second or later marriage, Pennsylvania recognizes two conflicting presumptions. In re Estate of Watt, 185 A.2d 781, 785-86 (1962). The first presumption is that a valid first marriage continues until it is proven to be dissolved by death, divorce or annulment. Huff v. Director, Office of Personnel Management., 40 F.3d 35, 39 (3d Cir. 1994) (citing to Watt, 185 A.2d at 785-86). The second presumption presumes the innocence and validity of a second marriage. Id. When there is a conflict in the presumptions, Pennsylvania courts perform a balancing test to determine which of the two presumptions is more easily sustained by the evidence.
In applying Pennsylvania law, the Third Circuit rejected the theory that the first marriage must be shown conclusively to have terminated before the second can be recognized. Huff at 40 F.3d at 42. See Cupler v. Secretary of Health and Human Servs., 252 F. Supp. 178 (1966) (holding that a marriage which went unchallenged during the twenty-eight years both spouses lived and for nearly five more years after the husband died was clothed with presumption of validity). Each case must be resolved on the basis of its own facts and circumstances.
In this case, based on the evidence thus far, we believe the presumption of continuance of the marriage between G~ and B~ yields to the presumption of validity of the marriage between G~ and I~.
B~ was served with divorce papers. She answered the complaint and she was represented in the divorce proceedings by an attorney. She does not deny the divorce. Moreover, in the twenty-five years following the divorce, its validity has never been challenged. A copy of the divorce decree is also in the claims file. Thus, there was a record of the divorce. This was sufficient proof that the first marriage had been dissolved.
Furthermore, as stated above, the fact that G~ married I~ only four days after his divorce proved that both he and I~ believed the divorce was valid and that they had the right to marry each other. Indeed, under New York law, which was where G~ and I~ got married, the Mexican divorce would have been considered valid. See Rosen v. Sitner, 418 A.2d 490, 492 (1980) (holding that a Mexican divorce decree was valid under New York law where one spouse appears personally and the other spouse submits to the jurisdiction of the court by entering an appearance). That was the situation in this case. Accordingly, there was no evidence in the record to suggest that G~ and I~ did not innocently enter upon the second marriage.
Moreover, even though G~ and I~ were not living together at the time of G~'s death, they were still married. There was no evidence that they divorced. Even G~'s death certificate listed I~ as his surviving spouse.
This case was somewhat unusual in that B~ and G~ apparently reconciled with each other and lived together until his death in May 1995. B~ even applied for social security benefits as G~'s widow. None of these factors, however, lessen the more supportable presumption that the second marriage between I~ and G~ was valid.
Finally, our opinion is based on the evidence as it currently exists in the file. If new evidence is discovered changing any of the above facts, our opinion may change. In that event, you may want to consult us again.
It appears that I~ is G~'s widow for social security purposes. Accordingly, she would be entitled to the DIB underpayment, and eligible for widow benefits and the lump sum death payment, provided all the other requirements for these benefits are met.
. This conclusion of law and citation were provided by an international law expert from the Library of Congress.