PR 06210.045 South Carolina
A. PR 04-162 Whether, under South Carolina law, a divorced obtained in the Dominican Republic is valid.
DATE: July 3, 1986
A Dominican Republic divorce decree obtained by the NH is of no force or effect in South Carolina. The NH resided in South Carolina within twelve months of the divorce decree, traveled to the Dominican Republic for only two days for the sole purpose obtain a divorce, and resumed residence in South Carolina within eighteen months afterward; therefore, he was domiciled in South Carolina at the time the divorce proceedings were commenced. Moreover, the NH's wife was continuously domiciled in South Carolina at the time of the divorce proceedings.
You have requested our opinion as to whether a divorce obtained in the Dominican Republic is valid in the State of South Carolina. We have concluded that the divorce would not be considered valid under South Carolina law.
Leland M~, the number holder (NH), married Gloria A. M~, his first wife, on August 21, 1964, in St. Paul, Minnesota. After the couple established residence in South Carolina, NH separated from Gloria on October 15, 1975, but was unable to obtain a divorce under South Carolina law. After consulting with an attorney, NH traveled to the Dominican Republic to obtain a divorce. NH did not reside in the Dominican Republic and went there for two days for the sole purpose of obtaining the divorce. The divorce decree was issued on January 30, 1978. Gloria was not present at the proceedings but appeared through an attorney. NH returned to South Carolina and married Gloria's sister, Mary.
Generally, a state need not recognize foreign divorce decrees. Williams v. North Carolina, 325 U.S. 226 (1945). In South Carolina, the effect of a divorce obtained in another jurisdiction is controlled by sections 20-3-210 through 20-3-440, S.C. Code Ann., the "Uniform Divorce Recognition Act." A divorce "obtained in another jurisdiction shall be of no force or effect in this State if both parties to the marriage were domiciled in this State at the time the proceeding for the divorce was commenced." S.C. Code Ann. § 20-3-420; see also Powers v. Powers, 254 S.E.2d 289, 290 (S.C. 1979). Additionally, section 20-3-430 provides:
Proof that a person obtaining a divorce from the bonds of matrimony in another jurisdiction was (a) domiciled in this State within twelve months prior to the commencement of the proceedings therefore and resumed residence in this State within eighteen months after the date of his departure therefrom or (b) at all times after his departure from this State and until his return maintained a place of residence within this State shall be prima facie evidence that the person was domiciled in this State when the divorce proceeding was commenced.
S.C. Code Ann. § 20-3-420.
Given that NH resided in South Carolina within twelve months of the divorce decree, traveled to the Dominican Republic for only two days for the sole purpose obtain a divorce, and resumed residence in South Carolina within eighteen months afterward, he was prima facie domiciled in South Carolina at the time the divorce proceedings were commenced. Moreover, Gloria was continuously domiciled in South Carolina at the time of the divorce proceedings. Given these facts, the Dominican Republic divorce decree was of no force or effect in South Carolina. See Powers, 254 S.E.2d at 290.
Although the issue was not presented, Gloria would be estopped from claiming that the divorce was invalid to obtain benefits as a legal spouse because she took no action to contest the divorce for more than twenty-five years and accepted a property settlement. See POMS GN 00305.175 (2)(d), (e). Gloria could, however, obtain benefits as a divorced spouse, if she otherwise qualifies for benefits. POMS GN 00305.180(C) (2) (If a claimant is estopped to assert the invalidity of a divorce and thus cannot be considered the worker's spouse, the claimant can obtain benefits as a divorced spouse or surviving divorced spouse if otherwise qualified).
Very truly yours,
Mary Ann S~
Regional Chief Counsel
Joseph P. P~ III
Assistant Regional Counsel
B. PR 86-029 Validity of Divorce of Lallie H~ and Aaron R. K. S~, Deceased Number Holder
DATE: July 3, 1986
PARENT AND CHILD -- FEDERAL DEFININITION OF "CHIILD"-- COURT DECREE OF PATERNITY -- S.
The decree of divorce is not binding upon the Secretary in that it does not comply with standards as delineated in Social Security Ruling (SSR) 83-37(c). Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). The divorce was not genuinely contested before the state court by parties with opposing interests and the resolution of the divorce case by the state trial court is not consistent with the law enunciated by the highest court in the state.
(S~ R. K. - SSN ~ - RAIV [A~] - to ARC, Progs., Atl., 07/03/86)
In your memorandum of March 28, 1986, you requested that this office render a legal opinion concerning the validity of the divorce decree issued by the Circuit Court of Richland County, South Carolina, involving Lallie H~ and Aaron Ms. H~ filed for widow's benefits based on the account of Rhett S~ The facts are as follows:
Lallie S~, also known as, Lallie H~, married the number holder, Rhett S~, on July 26, 1936. They were married until his death in December, 1972. The records show that Lallie S~ received a mother's benefit based on her deceased husband's record from the time of his death until December, 1977. Upon her subsequent marriage to Paul S~ the benefits ceased. The record shows that Lallie and Paul S~ were divorced on April 10, 1979. Lallie was then married on May 24, 1979 to Aaron H~. The records also indicate that Lallie stated that she was then single at the time she filed for disabled widow's benefits in March 1980 based on the record of Rhett S~ Since her marriage to H~ was discovered by the district office upon her filing a claim for widow's benefits in 1980, the administration disallowed her claim on the basis of her then current marriages. The record shows that on September 5, 1985, Lallie H~ filed an application based on Rhett S~ record for widow's benefits, and at the same time, submitted the subject divorce decree indicating her divorce from Aaron H~ in August, 1985. The divorce was granted on the statutory grounds of one year's separation. Contact with the court which granted the divorce revealed that the only submitted evidence of the alleged separation was the sworn affidavits of Lallie and Aaron H~
For reasons hereinafter stated, it is this office's opinion that the divorce issued on the grounds of one year's separation is not binding on the Secretary, and for purposes of Social Security benefits, Lallie H~ and Aaron H~ should be deemed wife and husband.
It is well settled law that the Secretary will be bound by state trial court decisions only where the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; (2) this issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. SSR 83-37(c); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); See, also, Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967). We find that the divorce decree granted by the Circuit Court of Richland County, South Carolina, does not met the 2nd and 4th prerequisites established in Gray, supra.
First, with divorce was not genuinely contested before the State by parties with opposing interests as the record clearly demonstrates that the parties contrived the divorce for their mutual benefit, i.e., to increase their Social Security benefits. The case file indicates that Lallie H~ and her husband submitted a request to SSA to determine if her Social Security benefits would increase if the parties were divorced. Ms. H~ wanted to know if she would be entitled to any other SS benefits if she was divorced. A Social Security representative quoted Lallie H~ as saying, "She and Aaron might have to get a divorce because they couldn't live on the little bit of Social Security they are getting." This statement suggests that the parties had mutual interests in obtaining the divorce.
The file also shows that Lallie H~ and Aaron H~ made the inquiry about divorce and Lallie's Social Security situation in the Spring of 1985. Lallie H~ filed for divorce in August 1985. The records show that Lallie H~ alleges a twelve month separation from her husband on the divorce decree in her petition on August, 1985, but she states she had been separated only since February 1985 on an SSA Form 8200. Further, Lallie and Aaron opened a joint checking account on March 14, 1985, and both parties resided at the same location as established by the fact that SSA forwarded some of their correspondence and checks to the same address and as further evidenced by the factors discussed below. Additionally, the file indicates that the only evidence before the court relating to whether the parties had in fact resided in a bonafide state of separation was two sworn affidavits submitted by the parties. Therefore, it is this office's opinion that Lallie and Aaron H~ did deliberately contrive the divorce for their mutual benefits, (i.e., to increase their Social Security benefits). Accordingly, the parties to the divorce did not have opposing interests, and hence, the declaration of divorce is not binding on the Secretary since the issues in the divorce proceedings were not genuinely contested. Second, the divorce decree is not binding because the subject judgment is not consistent with the law enunciated by the South Carolina Supreme Court. Lallie H~ filed suit and was granted a divorce on the statutory grounds of one year's separation under The Code of Laws at South Carolina, Section 20-3-20(5), Grounds For Divorce. She contended that the cessation of cohabitation had been established.
However, there is strong evidence in file to demonstrate that Lallie and Aaron H~ were living together in the same household during the year in question, August 1984 to August 1985. Thus, the parties had not ceased cohabitating or living separately and apart. Frazier v. Frazier, 228 S.C. 149, 89 S.E. 2d 225 (1955); Machado v. Machado, 220 S.C. 90, 66 S.E. 2d 629 (1951); Code of Laws of South Carolina, 20-3-10(5). The foregoing authorities establish that a divorce on the grounds of desertion in South Carolina must be based on the following: (1) cessation from cohabitation for the statutory period of one year; (2) intent on the part of the absenting party not to resume it; (3) absence of the opposite party's consent; and (4) absence of justification.
The file evidence shows that Aaron was hospitalized on three occasions in 1985 at the Veterans Hospital at Columbia, South Carolina, March 4th, June 10th and August 25th. On all three occasions he was discharged to the living quarters occupied by his wife, Lallie, at 800 Jefferson Allen Drive, Columbia, South Carolina. The records show that when Aaron H~ was hospitalized in August 1985, he gave his address as 800 Jefferson Allen Drive. In addition, his Title II benefits are being sent to that address. Although Lallie was granted a divorce on the grounds of desertion, the above-mentioned facts demonstrate that she and Aaron H~ were residing at the same living quarters during the statutory period.
Further, in South Carolina when a husband and wife occupy the same living quarters, the law presumes that they engage in marital relations. Boozer v. Boozer, 130 S.E.2d 903 (1963). The South Carolina Supreme Court in Boozer, supra, explained in language from other authorities that ". . . the word separation, as applied to the legal status of a husband and wife * * * means a cessation of cohabitation of husband of wife. Cohabitation according to Winston's Dictionary, Encyclopedia Edition (1943), means: "To live together as man and wife, usually, though not necessarily, implying sexual intercourse." The overwhelming weight of authority as to what is meant by living 'separate and apart', is in accord with the view expressed in 17 Am. Jur., Sec. 162, p. 232, as follows: 'The discontinuance of sexual relations is not in itself a living "separate and apart" within the meaning of some statutes, and a divorce will be denied where it appears that during the period relied upon, the parties had lived in the same house." Id. at 905. The "living separate and apart" language of Section 20-3-10(5) of the South Carolina Code requires that the parties live in separate domiciles for a period of a year. Barnes v. Barnes, 280 $.E.2d 539 (1981). Since the factors mentioned above clearly show that the parties lived at the same address during the year before the divorce was granted, we conclude that a divorce decree issued on the basis that the parties lived "separate and apart" is inconsistent with the rulings of the South Carolina Supreme Court.
Further, this office concludes that the public activities and behavior of Lallie and Aaron as described in this discussion constitutes "holding out as man and wife" to the community. "Marriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the grounds of separation." Id. at 905.
It is a well established rule in South Carolina that in an equity case, findings of facts by a master, which are concurred in by circuit judge, are conclusive upon Supreme Court and will not be disturbed unless it is shown that such findings are without any evidence to support them, or are against the clear preponderance of the evidence. Oswald v. Oswald, 230 S.C. 299, 95 S.E.2d 493 (1956). This office is convinced that the South Carolina Supreme Court would overturn the judgment in the subject case based on the probative evidence in the claim file and would not sustain the divorce on the ground of desertion.
Based on the foregoing discussion, your office would be warranted in finding that Lallie and Aaron H~ are married, one to the other, for Social Security purposes.
C. PR 84-016 Recognition of Validity of Marriage After Foreign Divorce Under South Carolina Law
DATE: March 21, 1984
DIVORCE -- RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -- SOUTH CAROLINA
DIVORCE -- VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE -- SOUTH CAROLINA
Where the claimant had a marriage which was ended by a foreign divorce decree granted by Santa Domingo and the wage earner had a previous marriage which ended in a Mexican divorce proceeding and the claimant and wage earner were married in Connecticut and moved to South Carolina, we held that the State of South Carolina would probably apply the doctrine of estoppel to preclude them from denying the validity of the foreign divorces and thereby recognize the validity of the subsequent marriage.
(Recognition of Validity of Marriage After Foreign Divorce Under South Carolina Law - RAIV [A~] - to Dir., NEPSC, 03/20/84)
You have asked for our opinion as to whether the State of South Carolina will recognize as valid the marriage between the wage earner and the claimant under the following factual situation.
On May 4, 1983 Ella H. P~ filed a claim for wife's benefits on the record of T. Dennie P~. Both she and the wage earner were domiciled in South Carolina at the time the application was filed.
Ella H. P~ had one previous marriage which ended in a divorce granted by Santo Domingo on May 3, 1972 while she was a resident of New York State. She appeared personally at the divorce proceedings and her first husband was represented by his attorney. The wage earner also had one prior marriage which ended in a Mexican divorce on February 18, 1971 while he was domiciled in New York. The wage earner was present in the Mexican Court at the time of the divorce and his first wife was represented by her attorney. The claimant and the wage earner were married June 24, 1972 in the State of Connecticut while they were both still New York domiciliaries. The District Office was unable to locate any marriage license for these parties issued by the State of Connecticut.
South Carolina follows the general rule that the law of the place where the marriage is contracted determines its validity and the marriage will be recognized unless the recognition thereof would contradict strong public policy. See, Zwerling v. Zwerling, 244 S.E.2d 311 (1978) (copy attached). The South Carolina court ruled in the Zwerling case that a marriage which was valid in New York where it was contracted would be recognized as valid in South Carolina where there had been a previous bilateral Mexican divorce between New York residents and with the knowledge of the second husband, who was also a New York resident. The factual situation presented here is slightly different from that in Zwerling in that while the parties were residents of New York, they were married in Connecticut. Although New York would recognize the marriage as valid, Connecticut might not. Therefore, even assuming that the State of South Carolina would recognize the foreign divorce the question would still need to be resolved as to whether South Carolina would find that the marriage was valid in Connecticut.
Furthermore, while South Carolina may find that the Connecticut marriage was not valid even in Connecticut,1_/ the doctrines of estoppel and laches may be applied in a situation such as this which would preclude any of the parties from denying the validity of the divorce and remarriage. See, e.g., S~, Melvin S., DWE,~ RAIV (S~), to BHA, 10/28/68 (copy attached). There appears to be sufficient evidence in this claim to warrant a finding that the claimant and the wage earner would be estopped from denying the validity of their foreign divorces by relying on them to get married in Connecticut. However, should further assistance be necessary in this matter please feel free to contact our office.
1_/ The question of the validity of the marriage under Connecticut law and the lack of the marriage license are not addressed herein.
D. PR 82-051 Henry E. L~, Deceased - ~, Surviving Divorced Spouse, South Carolina
DATE: October 29, 1982
DIVORCE -- RECOGNITION OF FOREIGN DIVORCE -- STATE LAW - South Carolina
A claimant may be estopped to deny the invalidity of her Dominican Republic divorce from the deceased wage earner where the evidence indicates that she participated in obtaining the fraudulent divorce.
Further, a void judgment of divorce cannot be legalized by the acts of the divorced parties nor can they become divorced by estoppel. Jannino v. Jannino, 234 S.C. 352, 108 S.E. 2d 572 (1959).
You have requested our opinion as to whether the number holder's first wife would be estopped from denying the validity of her 1980 Dominican Republic divorce from the number holder even though said divorce would not be valid under the laws of the number holder's domicile, South Carolina. Further, you have asked whether a party who is found not to have the relationship of wife or widow based on estoppel, might become entitled to benefits as the divorced spouse or surviving divorced spouse.
The facts as contained in the file are that Henry E. L~ , the number holder, died on August 9, 1981, while domiciled in South Carolina. He had married Maryanne W~ in South Carolina on July 17, 1965, and obtained a divorce from her with her consent by proxy, in the Dominican Republic on May 27, 1980. Both parties were residents of South Carolina at the time of the divorce and they had previously executed a property and separation agreement which was not affected by the divorce decree. On May 28, 1980, Mr. L~ married Rebecca K. S~ in the Dominican Republic.
We are in agreement with your conclusion that the divorce obtained in the Dominican Republic would not be recognized in South Carolina for the reasons set forth in OGC opinion, P~, Phillip - ~ - RA IV (P~) May 17, 1977.
With regard to whether Maryanne W~ may now be estopped to deny the invalidity of her Dominican Republic divorce, it was held in Smoak v. Smoak, 269 S.C. 313, 237 S.E. 2d 372 (1977), that one against whom a void decree of divorce is granted may be barred by laches or estoppel from attacking the decree. The Smoak court noted that earlier South Carolina cases had held,
"where a husband obtains a void decree in a foreign jurisdiction, he may not, upon becoming a widower, claim an interest in the property of the wife he divorced, because he is estopped to assert the invalidity of the divorce he wrongfully procured." Ex Parte Nimmer, 212 S.C. 311, 47 S.E. 2d 716 (1948); Way v. Way, 132 S.C. 288, 128 S.E. 705 (1925).
The court in Smoak cited with approval to the decision in McNeir v. McNeir, 178 Va. 285, 16 S.E. 2d 632 (1941), which held that,
"The party who obtained the divorce, even though such a decree is not entitled to recognition, is generally regarded as estopped from asserting continuance of the marital relation .... The one who has participated in obtaining a fraudulent divorce is not entitled to allege its invalidity."
See also Watson v. Watson, 172 S.C. 362, 174 S.E. 33 (1934).
The court in Smoak, at 375, also quoted to 27B C.J.S., Divorce §364, which states,
"Thus, in a proper case a person may be estopped to attack, impeach, or deny the validity of a foreign divorce decree, as where he or she obtained the decree, participated in the fraud or wrong by which the decree was obtained, financed the proceeding, voluntarily appeared and participated in the foreign action, did some act which in itself recognized the validity of the decree, or accepted the benefits of the decree .... "
The Smoak court cited with approval to 27A C.J.S., Divorce §173(3),
"A party to a divorce decree and those in privity with him may be estopped to deny the validity of the decree even though all of the elements necessary to an application of the doctrine of estoppel proper as usually applied to ordinary cases of equitable cognizance may not be present ... (emphasis added)."
It is our opinion that on the basis of her participation in the divorce proceeding in the form of her consent by proxy, Maryanne W~ is estopped from asserting the invalidity of her divorce from the deceased wage earner. As noted by the court in Jannino v. Jannino, 234 S.C. 352, 108 S.E. 2d 572 (1959), although a party against whom a void decree of divorce is granted may be barred by laches or estoppel from attacking it, this "does not mean that a void judgment of divorce can be legalized by the acts of the divorced parties or that they can become divorced by estoppel." Thus, we conclude that Maryanne W~ cannot, based on estoppel, become entitled to benefits as the surviving divorced spouse.