You have requested an opinion on whether Virginia courts would apply the doctrine
of estoppel to recognize the validity of the Mexican divorce between the number holder's
surviving spouse, Isabelle L. M~, and her first husband, Donald T~. You have also
asked whether the Virginia courts would recognize the subsequent marriage between
Isabelle and Richard H. M~, the number holder, thereby entitling Isabelle to receive
surviving spouse benefits, including retroactive benefits and a lump sum death payment
on Richard M~'s record.
For the reasons explained below, we conclude that a Virginia court would apply the
principles of estoppel and laches to bar any challenge to the validity of the Mexican
divorce and that it would also recognize the subsequent marriage between Isabelle
and Richard M~ as valid.
As we understand the facts, Isabelle married Donald T~ in New York on June 4, 1952.
On November 29, 1963, Isabelle obtained a divorce from Donald T~ in Juarez, Mexico.
At the time of the divorce, both parties were domiciled in New York. The divorce decree
states that Isabelle personally appeared before the court in Mexico to file her petition
for divorce, and that she had proved by certificate of registration that she was registered
in the official book of residents of Juarez, Mexico. Donald T~ did not appear at the
Mexican proceedings, but he was represented in Juarez by a Mexican attorney who served
as his legal proxy. The divorce decree indicates that Donald T~ concurred in the divorce
and that he expressly submitted to the jurisdiction of the Mexican court. The separation
agreement that was entered into by the couple on November 6, 1963 was incorporated
into the Mexican divorce decree. The divorce decree also declared that the couple's
minor child would remain under the custody of Isabelle.
On the day of her Mexican divorce decree from Donald T~ (November 29, 1963), Isabelle
married Richard M~, the deceased number holder, in Juarez, Mexico. Isabelle and Richard
M~ remained married until Richard's death on October 29, 2001. Donald T~ married Lillian
T~ on September 27, 1969 in Las Vegas, Nevada, and he is still currently married to
On November 19, 2001, Isabelle applied for surviving spouse and lump sum death benefits
on Richard M~'s record. She provided SSA with authenticated copies of the divorce
decree and marriage certificate. In recent contacts with SSA, Isabelle stated that
she did not believe that she established her residency in Mexico when she obtained
the divorce. She explained that her lawyer made all the arrangements for her and that
she only stayed in El Paso, Texas, for a day or two, to obtain the divorce and to
marry Richard M~. She indicated that she always assumed that her divorce and subsequent
marriage to Richard M~ were valid.
Pursuant to section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. § 416(h)(1)(A),
a claimant is considered the widow of an insured individual if the courts of the individual's
domicile at the time of his death would find that the claimant and the insured individual
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. In this case, because Richard M~ died
a Virginia domiciliary, Isabelle's marital status must be evaluated under Virginia
Validity of the Mexican Divorce
Generally, in Virginia, a decree of divorce granted in a foreign country by a court
having jurisdiction will be recognized as valid under the doctrine of comity. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1363, n.10 (E.D. Va. 1980). This does not mean, however, that
all foreign divorces will be recognized as valid. In Virginia, a divorce obtained
in a foreign country will normally not be recognized as valid if neither spouse was
a good-faith domiciliary in that country. See Harrison v. Harrison, 214 F.2d 571, 573 (4th Cir. 1954) (affirming a Virginia district court decision
which held that a Mexican divorce obtained by plaintiff's husband was lacking in extraterritorial
validity because plaintiff's husband had never acquired a bona-fide domicile in Mexico).
Under Virginia law, however, there is also a strong rebuttable presumption that a
marriage last-in-time is valid, and that any prior marriage was terminated by death
or divorce. Hewitt, 490 F. Supp at 1362; see also Parker v. American Lumbar Corp., 56 S.E.2d 214, 216 (Va. 1949) (where both parties to first marriage are shown to
be living at time of second marriage of one of the parties, it is presumed in favor
of the second marriage that the first marriage was dissolved by divorce).
In this case, it does not appear that either Isabelle or Donald T~ were domiciled
in Mexico at the time of the divorce. Therefore, a Virginia court could potentially
refuse to recognize the divorce on jurisdictional grounds. However, as stated above,
because of the strong presumption in favor of finding a second marriage valid, it
is also possible that a Virginia court could find the divorce valid, given that both
Isabelle and Donald T~ each remarried after the divorce.
Nevertheless, even if a Virginia court declined to recognize the Mexican divorce on
jurisdictional grounds, we believe that it would still apply the equitable doctrine
of estoppel and/or laches to find the divorce to be valid. In Virginia, it is a hallowed
rule of equity that a complainant must come in with clean hands. McNeir, 16 S.E.2d at 633. If a complaint's own conduct brought about the conditions of which
he now complains, he is estopped from obtaining relief. Id. In this case, Donald T~ could conceivably challenge the validity of the Mexican divorce
on the grounds that he was not the moving party. However, while Donald T~ did not
obtain the divorce, he consented to it in advance and he was represented at the proceedings
by a Mexican attorney who served as his legal proxy. In addition, the Mexican divorce
decree incorporated separation agreement that he and Isabelle entered into a few weeks
before the divorce. It also affirmed the custody of the minor child that had been
arranged. Thus, Donald T~ was an active consenting party to the divorce. Accordingly,
we believe that a Virginia court would apply equity and find that he did not have
"clean hands" to challenge the validity of the divorce decree.
We also believe that any challenge to the divorce by Donald T~ would be defeated by
application of the equitable doctrine of laches. There is no absolute rule as to what
The court will examine each case according to its own particular circumstances.
Bartsch v. Bartsch, 132 S.E.2d 416, 422 (Va. 1963). In Bartsch, the Virginia Supreme Court of Appeals held that it was not necessary to determine
whether a husband was a bona fide resident of a different state when he obtained a
divorce on his own because whatever rights his wife had to assail the out-of-state
decree were lost by laches. Id. at 421-22. The wife had waited until her ex-husband's death, twenty-one years after
the divorce, to challenge the validity of the divorce. In the interim, the husband
had remarried. Because of the wife's long delay in legally attacking the divorce and
the fact that her ex-husband had remarried, the court applied laches to defeat her
efforts to overturn the divorce.
In the instant case, like in Bartsch, it would be highly prejudicial to Isabelle if her divorce decree could now be attacked
as invalid. The Mexican divorce was obtained over thirty-eight years ago. As far as
we are know, there has never been a challenge to the divorce. Isabelle always assumed
the divorce decree was valid and there is no indication that Donald T~ assumed any
differently. Indeed, presumably relying on the divorce's validity, both Isabelle and
Donald married again after the divorce. Accordingly, considering these circumstances,
we believe that a Virginia court would probably apply the doctrine of laches and/or
estoppel and bar Donald or any other party from contesting the validity of the Mexican
divorce decree at this late date.
We note that the Program Operations Manual System (POMS) also supports the application
of estoppel in this case. GN 00305.175 of the POMS lists five grounds upon which a party may be estopped from denying the
validity of a divorce. Two of these grounds appear to be applicable here. First, GN 00305.175A.2.b of the POMS states that a party may be estopped where, as here, he or she was the
defendant in a divorce action and accepted the court's jurisdiction. Second, GN 00305.175A.2.e of the POMS notes that estoppel may lie where the party otherwise accepted or acted
in recognition of the decree as valid (e.g., knew of the divorce and allowed it to
stand unchallenged for a long time).
There may be situations where SSA may want to challenge the validity of an invalid
divorce even if a party to the divorce is estopped from doing so. See Slessinger v. Secretary of Health and Human Servs., 835 F.2d 937, 941 (1st Cir. 1987) (holding that because SSA was not a party to the
divorce, the principle of estoppel did not prevent SSA from challenging an invalid
foreign divorce decree); see also SSR 88-15c (adopting Slessinger as its official position). In this case, however, given the peculiar facts of this
case, not the least of which was the fact that the divorce was obtained over thirty-eight
years ago, we believe that even if SSA decided to collaterally attack the validity
of the divorce decree, a Virginia court would still utilize the equitable principles
discussed above and find the divorce to be valid.
Accordingly, it is our opinion that a Virginia court would likely decline to overturn
the Mexican divorce decree based on the equitable doctrine of estoppel and/or laches.
Therefore, we conclude that the Mexican divorce could stand as valid.
Second Marriage is Presumed Valid.
In Virginia, the general rule is that court will find a marriage valid if that marriage
is valid under the law of the state or country where it was celebrated, unless it
is repugnant to public policy. Farah v. Farah, 429 S.E.2d 626 (Va. App.1993). The public policy of Virginia is to uphold the validity
of a marriage if at all possible. Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 857 (E.D. Va. 1968).
As stated above, in Virginia, where two marriages of the same person are shown, the
second marriage is presumed to be valid, and such presumption is stronger and is accorded
greater weight because it is presumed that the prior marriage was terminated by death
or divorce. Hewitt, 490 F. Supp at 1362; Parker, 56 S.E.2d at 216. The presumption supporting the validity of the second marriage
arises because the law presumes morality and legitimacy, not immorality and bastardy.
Parker, 56 S.E.2d at 216. The presumption in favor of validity can be rebutted, but the
evidence in rebuttal must itself be strong. Hewitt, 490 F. Supp at 1364. The presumption is "not one which disappears or 'goes out the
window' . . . when met with rebuttal evidence. Rather, it is a presumption that continues
to have weight, due to the strength of the policies that give it purpose, in the face
of contrary evidence." Id. The burden, therefore, is on the contesting party to document in every reasonable
manner the absence of a divorce. See DeRyder v. Metropolitan Life Insurance Co., 145 S.E.2d 177, 181-82 (Va. 1965); see also Parker 56 S.E.2d at 216 (testimony of first wife that she had never obtained a divorce from
her first husband and that she had never had any notice of any divorce obtained by
him was insufficient to rebut presumption that his second marriage to claimant was
Based the current facts of this case, we believe that a Virginia court would apply
the presumption in favor of finding the second marriage valid between Isabelle and
Richard M~. We do not believe that a contesting party could reasonably show the absence
of a divorce between Isabelle and Donald T~. As stated above, both Isabelle and Donald
T~ participated in the divorce proceedings. Moreover, in the thirty-eight years since
the divorce, there is no evidence that either one of them challenged its validity.
In addition, an authenticated copy of the Mexican divorce decree was submitted to
SSA, as well as an authenticated copy of the marriage certificate. Thus, there was
an official record of both the divorce and the subsequent marriage proceedings. In
addition, as stated above, the fact that both Isabelle and Donald T~ each remarried
after the divorce further proved that they both believed that the divorce was valid
and that they had the right to re-marry and enter into valid marriages. Consequently,
there appears to be insufficient evidence to rebut the presumption that Isabelle's
second marriage was valid. Accordingly, we believe that the marriage between Isabelle
and Richard M~ would stand as valid in the Virginia courts.
It is our opinion that Virginia courts would likely recognize the Mexican divorce
as valid. We also believe that Virginia courts would likely find the subsequent marriage
between Isabelle and Richard M~ to be valid, and that as a result, Isabelle could
be considered the legally surviving spouse of Richard M~. Hence, it appears that Isabelle
would be eligible for surviving spouse benefits, including any retroactive benefits
and the lump sum death payment, provided that you determine that all the other requirements
for these benefits are met.