PR 06405.004 Arizona
A. PR 07-114 Eligibility of Claimant as Either a Surviving Divorced Spouse or Widow
DATE: April 11, 2007
A Mexican divorce between two parties neither of which is domiciled in Mexico would not be recognized as valid by the Courts of Arizona. Although a Mexican divorce is found to be invalid, a claimant who sought the divorce is estopped from contesting the invalidity of the divorce. However, for SSA purposes we will consider the divorce a final divorce and the claimant the surviving divorced wife or surviving divorced husband if he/she otherwise qualifies for widow(er)'s benefits.
You have asked whether Gertrude D~ would be entitled on the record of Philip D~ as either a surviving divorced spouse or a widow.
SUMMARY OF EVIDENCE
Gertrude D~ was born on December 30, 1924. On October 10, 1948, she and Philip D~, the wage earner, were married in the State of New York. According to the claimant, she went to Juarez, Mexico to get a divorce from the wage earner. A lawyer in New York arranged the divorce. Although the wage earner did not physically go to Juarez, Mexico, he purportedly was aware of the divorce. Neither the claimant nor the wage earner were residents of Mexico at the time of the divorce. Neither one ever remarried. On January 14, 2004, the wage earner died domiciled in Phoenix, Arizona.
On October 4, 2006, the claimant filed for benefits as a surviving divorced spouse. She no longer has a copy of the divorce decree, and the New York attorney who purportedly helped her obtain the divorce is deceased. Further, the Foreign Service Post could not find any record of a divorce in Juarez, Mexico, between the claimant and the wage earner from 1955 through 1965.
An individual may qualify for Title II widow's benefits as a surviving divorced spouse if he or she was married to the wage earner for at least ten years prior to the date their divorce became final; he or she is at least 60 years old or at least 50 years old and has a disability as defined by the Social Security Act; and is unmarried (or married under circumstances not applicable here). Social Security Act § 216(d), 42 U.S.C. § 416(d); 20 C.F.R. § 404.336 (2006); POMS
RS 00207.001. The determination of the claimant's marital status is governed by the laws of Arizona, which is the state where the wage earner was domiciled at the time of his death. Social Security Act § 416(h)(1)(a)(i), 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345; POMS GN 00305.170(A)(2).
The claimant has the burden of proving that she is divorced from the wage earner. 20 C.F.R. § 404.336. Because neither the claimant nor the wage earner resided in Mexico at the time of the divorce, the divorce would be found invalid in Arizona. See Unruh v. Industrial Commission, 301 P.2d 1029, 1031 (Ariz. 1956) ("mail order" Mexican divorce invalid where neither party resided in Mexico at the time); see also Cross v. Cross, 381 P.2d 573, 574 (Ariz. 1963) (Mexican court did not have jurisdiction to adjudicate the divorce therefore spouse secured a patently invalid Mexican divorce).
Although the claimant was not validly divorced from the wage earner, she is estopped from challenging the invalidity of the divorce because she sought the Mexican divorce. See Unruh, 301 P.2d at 1031 (an individual cannot question the validity of a divorce when he or she actively participated in securing the divorce); Green v. Green, 269 P.2d 718, 720 (Ariz. 1954); see also POMS GN 00305.175(A)(2) (an individual may be estopped to deny the validity of a divorce if he or she was a plaintiff in the divorce action).
Where, under state law, the claimant is estopped to assert the invalidity of a divorce from the wage earner, SSA will not consider the claimant to be the wage earner's spouse. POMS GN 00305.180(A)(3), which references GN 00305.180(C)(2). SSA will, however, "consider the divorce (for Social Security purposes only) a final divorce" and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits. Id.; see also Memorandum from Regional Chief Counsel, San Francisco, to Center for Programs Support, Region IX, Validity of Purported Mexican Divorce (June 28, 2005). Here, the claimant is unmarried, is 82 years of age, and was married to the wage earner for ten years before the divorce.
B. PR 88-005 Leo G. S~, Estoppel-Arizona
DATE: March 10, 1988
DIVORCE -RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -ARIZONA
Arizona -Unmarried Putative Spouse Status
Under Arizona law, a spouse who has obtained a patently invalid divorce remains legally married to that spouse and moreover, acquires no marital property rights from a subsequent "spouse" Claimant, here, is estopped from questioning the efficacy of the interlocutory divorce decree and cannot be considered the wage earner's legal widow or unmarried putative widow. (S~, Leo G., ~ -RAIX (S~), to RC, 03/10/88.)
Erna M. S~ has applied for social security widow's benefits on the account of Leo G. S~. Erna M. and Leo were married in Nevada on August 5, 1968. Mr. S~ previously had married Lucy M~ and you have concluded that this marriage was never ended by an alleged Mexican divorce. Erna M. had been married three times before. Her first marriage was ended by her husband's death. The second marriage was terminated by divorce. With respect to the third marriage, California court records indicate that an interlocutory decree was issued to Erna M. and Vernon E. S~ on November 25, 1966, but that neither party subsequently obtained a final decree., You asked "whether Erna M. is estopped to deny the finality Of her interlocutory divorce, so that she might be considered the unmarried putative widow of S~ under Arizona law."l/
To determine the effect of the interlocutory divorce decree, the Arizona courts would look to the laws of California, the state in which it was rendered. See 24 Am. Jur. 2d, "Divorce and Separation" §§ 1101-1103; see also Depper v. Depper, 9 Ariz.App. 245, 451 P.2d 325 (1969) (valid foreign decree entered in divorce action entitled to full faith and credit). As you recognize, under applicable California law a marriage is not terminated by divorce until the entry of a final decree. GC opinion re Albert E. ~, June 25, 1987. It follows that Erna M. remains legally married to Mr. S~ and her attempted marriage to Mr. S~ is void. 2_/
Since Erna M. married Mr. S~ in reliance upon the interlocutory decree, she is estopped from questioning the efficacy of that decree to terminate her prior marriage. See, e.g., M~ opinion re Jack M~, January 14, 1987. This does not mean, however, that she is to be considered Mr. S~ wife. On the contrary, under Arizona law a spouse who has obtained a patently invalid divorce remains legally married to that spouse and, moreover, acquires no marital property rights from a subsequent "spouse." Accordingly, Erna M. does not meet the requirements of section 216(h) (1) (A) in that neither is she Mr. S~ legal widow, nor is she entitled to spousal inheritance rights from his estate.
We frequently have advised that for social security benefit purposes, it would be inequitable to place a claimant in a position where, as a result of the estoppel doctrine, she cannot qualify for benefits on the account of her legal husband or as the wife of the subsequent putative spouse. See GC opinion re Albert E. P~, cited above. This is not the situation here, however, since Erna M. can readily clarify her legal status, clearing the way for entitlement on the account of her legal husband, Mr. S~. 3_/ Despite the lapse of more than twenty years, she may still petition for entry of a final judgment dissolving her marriage to Mr. S~. Cal. Civil Code § 4514. 4_/ Once this judgment is entered, she may satisfy the requirements for purposes of entitlement to divorced wife's benefits on Mr. S~ account. 5_/ Alternatively, she can do nothing, remaining legally married to Mr. S~ but equitably barred from denying the efficacy of the interlocutory decree. If she elects this course, she will not be entitled to benefits on either account.
You also asked whether the Regional POMS Supplement GN R 00305.475(g) needs clarification in. view of GC opinion re Philip ~, October 21, 1985, indicating that the estoppel doctrine may be applied to establish the "is-not-married" requirement in cases involving state law determinations under section 216(h) (1) (A) but that the concept of estoppel has no application for purposes of the Federal deemed marriage provision of section 216(h) (1) (B). The referenced POMS subsection addresses (federal) defacto (deemed) marriages and (state) putative marriages only; putative status, in states which recognize it, is in essence a state law equivalent of the federal deemed spouse status. We do not believe that the referenced language in the R~ opinion 6_/ was meant to encompass state law determinations of putative status; estoppel would be inconsistent with applicable legal concepts in that context. Thus, we see no need for amendment of POMS GN R00305.475(g).
1_/ Mr. S~ was an Arizona domiciliary at the time of his death on February 27, 1979.
2_/ Of course, a valid marriage was also precluded by Mr. S~ preexisting marriage to Lucy.
3_/ Even if estoppel were not applied against Erna M., in this case a valid marriage could not be made out due to the preexisting, undissolved marriage between Mr. S~ and Lucy.
4_/ She also could move to have the final judgment signed, dated, filed, and entered nunc pro tunc, granting the divorce as of the date when it could have been entered under the law if applied for. Cal. Civil Code § 4515. The entry of a nunc pro tunc decree would not legalize Erna M.'s marriage to Mr. S~ because of the independent impediment of his prior, undissolved marriage to Lucy.
5_/ You indicated that Mr. S~ applied for disability insurance benefits in July 1986.
6_/ It is important to understand the limits of the Bly G~ holding, paraphrased in Ronning: if, after application of state law, the claimant's divorce is found to be invalid but he/she is estopped from asserting its invalidity, he/she may be considered "not married" for social security benefit purposes.