PR 06210.047 Tennessee

A. PR 86-013 Validity of Mexican Divorce -- Tennessee Law A~, Vaughn, ~ -- A~, Margie~

DATE: March 10, 1986

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- RIGHTS ARISING FROM ESTOPPEL OF PRIOR SPOUSE TO ASSERT INVALIDITY OF DIVORCE -- TENNESSEE

DIVORCE -- VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE -- OUTSIDE UNITED STATES -- TENNESSEE

The courts of Tennessee would not disturb a Mexican divorce decree obtained by the claimant's husband in 1966 where the claimant was aware of the divorce and after consulting an attorney, decided not to challenge the legality of the divorce. The courts would probably use the doctrines of laches and estoppel to prevent the claimant from now challenging the validity of the Mexican divorce and the subsequent marriage of her previous husband. (A~, Vaughn, ~ -- RAIV (A~), to ARC, Progs., Atl., 03/10/86.)

2. OPINION

Your office has requested that we provide a legal opinion on whether Tennessee would recognize the validity of a Mexican divorce in the following factual scenario.

Vaughn A~ and Margie A~ were married on October 1, 1938, in Towns County, Georgia. In 1966, both parties were residing in Olive Springs, Tennessee, but were separated due to marital difficulties. Mr. A~ states that he went to Mexico in the spring of 1966 for the sole purpose of obtaining a quick divorce. Both parties state that they never resided in Mexico. Mrs. A~ was to have been notified of the divorce by the Mexican attorney but states she was not notified. However, she states that she was shown a copy of the divorce by Mr. A~ when he returned from Mexico. Mr. A~ remarried in Clintwood, Virginia, on June 13, 1966. Mrs. A~ has not remarried.

There are some statements in the file indicating that Margie A~ filed an action in Tennessee in 1969 and the Mexican divorce was upheld. No copies of court documents to support this contention were made available.

Previous precedent from this office has established that the courts of Tennessee would not recognize the validity of the Mexican divorce on the grounds of comity. See, M~ , Clarence O.- ~ -RAIV [C~] - to PC, B'ham., 05/22/61; M~ , Clarence O.- ~ - -RAIV [C~] - to PC, B'ham. 03/02/61 (citing Hamm v. Hamm, 30 Tenn.App. 122, 204 S.W.2d 113). In contrast an interested local attorney had presented a memorandum opinion citing the case of Hyde v. Hyde, 562 S.W.2d, 194 (Tenn. 1978) where the Tennessee court implicitly recognized the validity of a Haitian divorce. Consequently, you have requested our advice as to whether Tennessee would recognize the validity of the A~ divorce.

We have reviewed our previous opinions in this area and also the Hyde v. Hyde case cited by the attorney. Of initial note is the obvious factual distinction between the divorce in the Hyde case and the A~ divorce. In Hyde, both parties submitted to the jurisdiction of the Dominican Republic court - Mrs. Hyde appeared in person with an attorney and Mr. Hyde was represented by his attorney by virtue of a power of attorney. Both parties asserted that the divorce was valid and neither raised a question as to the jurisdiction of the Dominican Republic court. The Tennessee action was for a declaratory judgment affirming the validity of the Dominican Republic divorce decree under the doctrine of comity.

In recognizing the validity of the Dominican Republic divorce in Hyde, the Tennessee court noted on page 197 that:

"We would, of course, deny comity to a foreign nation decree if its lack of jurisdictional requirements equivalent to our own resulted in prejudice to any citizens of this state. It is clear that in this case the difference between Tennessee's jurisdictional requirements and those of the Dominican Republic have in no sense prejudiced the immediate parties. To the contrary, they contend that they have relied upon the validity of the Dominican Republic decree since its rendition more than three (3) years ago and will be prejudiced if we withhold comity."

The court further noted at 198 that:

"... While Tennessee is not, as a matter of law, required to grant comity to any foreign decree, the decision to grant comity in a given situation is nevertheless purely a question of Tennessee law."

While the parties in the Hyde case were in accord with respect to the divorce and jointly submitted to the jurisdiction of the court, the claimant and her husband did not seek a divorce jointly in Mexico and it is not clear as to whether the Mexican court had any jurisdiction over either party. There is also the question of service and notice with respect to the claimant prior to the divorce.

However, given the statements and information contained in the file, it is our opinion that absent an affirmative showing that the Mexican court lacked jurisdiction, the Tennessee courts would not disturb the Mexican divorce decree obtained by Mr. A~. See, C~, Quentin W~ - ~ RAIV [B~] - to ARC, RSI, 10/09/79. Even if the court did not honor the divorce decree on the basis of the doctrine of comity, we feel that a Tennessee court may very well conclude that Mrs. A~ waived her rights to complain of the divorce and remarriage, and would be estopped to contest the divorce and subsequent remarriage of Mr. A~. Almost twenty years have passed since the divorce and Mrs. A~ decided not to take any legal action when she was given notice of the decree after consulting with an attorney. She made her decision stating that she felt the Mexican divorce was legal. Consequently, it is our opinion that the Tennessee courts would not allow Mrs. A~ to challenge the validity of the Mexican divorce under the doctrine of laches and estoppel. See, Hamm v. Hamm, 614 S.W.2d 366 (Tenn.App. 1980). See, also, - ~ - RAVI [S~] - to RCPC, 07/05/63.


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PR 06210.047 - Tennessee - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008