PR 06405.011 Florida
A. PR 83-003 Frank M. W~, Deceased SSN ~ ESTOPPEL FLORIDA Martha R. W~ -E and Nancy S. W~D7
DATE: March 11, 1983
DIVORCE - RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -FLORIDA
Under Florida law the doctrine of estoppel may be invoked to bar a first wife from challenging the validity of a Mexican divorce procured by the first wife.
(W~, Frank, SSN ~, RAIV [W~] to Assistant Regional Commissioner, Programs, March 11, 1983).
In your memorandum dated May 17, 1982 you asked whether the insured's first wife (Nancy) would be estopped from denying the validity of a Mexican divorce which purported to terminate the marital relationship between herself and the now deceased insured.
The insured and his first wife, Nancy, were ceremoniously married in Bethesda, Maryland, on November 30, 1943.
The first wife and the insured subsequently executed a separation agreement dated May 28, 1969. At the time this separation agreement was executed, the first wife was residing in New York City and the insured was residing in Southington, Connecticut. This separation agreement contemplated a potential divorce and provided that the agreement would govern all property and support issues in the event of a divorce. On May 31, 1969 the first wife instituted a divorce action in a Mexican court in Juarez, Mexico. The insured answered the petition filed by the first wife admitting the allegations asserted by the wife and expressly submitted himself to the jurisdiction of the Mexican court. On June 5, 1969 the Mexican court issued a divorce judgment in favor of the wife and incorporated therein the separation agreement dated May 28, 1969.
The insured's first wife remarried on August 3, 1969 in New York City. This marriage was terminated by divorce on July 22, 1974 in Tennessee. The insured remarried in Fort Lauderdale, Florida, on December 15, 1969. The insured died April 4, 1978 domiciled in Florida. The insured's second wife filed an application for mother's benefits on August 30, 1978 and was awarded benefits. The first wife filed an application for surviving divorced wife's benefits on the insured's earnings record on October 5, 1981 and was awarded benefits effective January 1982.
Obviously, the Social Security Administration has already determined that the first and second wives are entitled to surviving divorced wife's and mother's benefits respectively. However, in light of POMS GN 00305.445, the issue of the validity of the Mexican divorce is now being re-examined by the Administration. It is the opinion of this office that if the first wife were to initiate a challenge to the validity of the Mexican divorce in the Florida courts, she would be barred from attacking the validity of that Mexican divorce under principles of estoppel as applied by the Florida courts. (D~, John, Mary, Marguerite, RAIV [W~] to Northeastern Program Service Center, August 13, 1980).
B. PR 80-006 D'~ Adverse Wife's Claim; Laches and Estoppel
DATE: August 13, 1980
Under Florida law the doctrines of laches and estoppel may be invoked to bar a first wife from challenging the validity of a Mexican divorce procured by her husband if the first wife unreasonably delays in bringing her action. Lanigan v. Lanigan, 78 So.2d 92 (1955).
(D~, John, Mary, Marguerite, RA IV (W~) to Northeastern Program Service Center, August 4, 1980)
In your memorandum of October 24, 1979, you asked whether the Florida courts may recognize an otherwise invalid Mexican divorce on the basis of estoppel and further you solicited comments on the "Memorandum of Law" by the attorney of the second wife, Marguerite. Since the "Memorandum of Law" discussed New York and Connecticut law, this office will defer any comment to the Regional Attorney responsible for those states. This opinion will be confined to a discussion of the competing public policy concerns the Florida courts would face under the facts of this case including the circumstances in which the doctrines of laches and estoppel may be applied by the Florida courts.
The wage earner, John D~, married his first wife, Mary, in Brooklyn, New York on October 11, 1936. Four children were born of this marriage. While he and Mary were residing in the state of New York, the wage earner procured a Mexican divorce on September 19, 1968. The wage earner was physically present in Mexico prior to initiating his divorce action for a period of three days, but Mary did not appear in Mexico personally or through counsel. The Mexican Judgment of Divorce stated that the ground for divorce was "incompatibility of temperment" and further stated that Mary was served by publication in the official newspaper of the Mexican state. The wage earner alleges notice of the divorce action appeared in the New York Times and further alleges his lawyer notified Mary by letter of wage earner's intent to divorce her. Mary, however, denies any knowledge of the divorce. Mary did not remarry.
The wage earner subsequently married Marguerite in the state of Connecticut on December 8, 1968. The file does not reflect the nature or extent of the wage earner's ties to the state of Connecticut. Marguerite was apparently aware of the Mexican divorce prior to her marriage to the wage earner and believed it removed any impediment to marriage between her and the wage earner. While residing in Long Beach, New York, a child was born of this marriage in March of 1971.
As residents of New York, the wage earner applied for retirement benefits on May 24, 1976, and Marguerite applied for wife's insurance benefits in June 1976. Marguerite was "deemed" to be the wife of the wage earner and was awarded benefits on that basis. In November 1978, wage earner and Marguerite moved to Florida and apparently became domiciled there. The first wife, Mary, filed her application for wife's benefits on the earnings record of the wage earner on January 3, 1979, as a resident of New York.
Mary alleges that she was aware the wage earner was living with another woman and that the wage earner had a child by this woman. Further, Mary alleges that she was in contact with the wage earner, that she and wage earner went out together even after this child was born and that she and wage earner mortgaged jointly owned real estate to generate $26,000 for a son born of the marriage between John and Mary. However, Mary denies any knowledge of a marriage between wage earner and Marguerite. Mary further states she was not aware of the existence of a divorce between she and wage earner.
Assuming the move to Florida by the wage earner and Marguerite in November of 1978 constituted a change of domicile from New York to Florida, the law of Florida will be determinative of the marital status, if any, existing between the wage earner and his first wife, Mary. Section 216(h)(A) of the Social Security Act. Florida courts follow the general rule that the validity of a marriage is determined by the law of the state where the contract of marriage exists. Young v. Garcia, 172 So.2d 243 (1965); Goldman v. Ditrich, 179 S. 715 (1938). Therefore, Florida courts would likely look to the law of both New York and Connecticut in its analysis of the wage earner's marital status.
However, since Florida courts would not apply the laws of these sister states if violatire of a paramount public policy of Florida, this opinion will focus on the competing public policy considerations which would face the Florida courts in this matter. Hebron v. Rassailaigue, 110 So.539 (1926); Beckwith v. Bailey, 161 So.576 (1925).
The Florida courts refuse to recognize divorces procured in Mexico under circumstances whereby neither spouse was domiciled in Mexico. Kittel v. Kittel, 194 So.2d 640 (1967). In Kittel, supra, the District Court of Appeals of Florida was faced with a factual situation similar to this D~ matter. Although husband and wife were residents of Florida, the husband went to Mexico to file his divorce action, remained there a few days in a transient hotel and secured a divorce on the ground of incompatibility of temperment which was not a ground for divorce in Florida. The wife was personally served with due notice of the Mexican action but did not appear. The wife instituted an action in Florida to enjoin her husband from prosecuting the Mexican divorce action. In affirming the lower court's ruling that the Mexican divorce was not valid in Florida, the Kittel court strongly denounced the husband's efforts as follows:
"To hold the alleged divorce decree is valid as was obtained in Mexico by Mr. Kittel would permit any party desiring to shed himself of a wife to simply go to a state or country several thousand miles away, remain there a few days and secure a divorce on grounds not. even recognized in this state. Should this be permitted, it would violate all principles of morality and justice .... "
Since neither wage earner nor Mary were domiciled in Mexico, the Mexican court lacked jurisdiction to grant a divorce to the wage earner. However, the subsequent marriage of the wage earner, Mary's awareness of Marguerite and the child born of the union of wage earner and Marguerite, and the ten year delay in contesting the relationship between wage earner and Marguerite raises the issue of whether the doctrine of laches and estoppel would be applicable under Florida law. In Lanigan v. Lanigan, 78 So.2d 92 (1955), the husband initiated a divorce action in Rhode Island but his wife successfully counterclaimed for a divorce from bed and board (procured a separation and support order). The husband then went to Nevada, initiated a divorce action and was granted a divorce. Subsequently, the husband held himself out as single or at least as divorced from his first wife, married twice thereafter and engaged in commercial transactions with persons who relied on the divorce decree. Sixteen years after the Nevada judgment, the first wife asked the Florida court to declare the Nevada divorce decree invalid and to enforce a Rhode Island judgment for alimony arrearages. Recognizing that the Nevada court may have lacked jurisdiction to grant this divorce since the husband was domiciled in Florida at the time the Nevada action was initiated and further recognizing that the actions of the husband in attempting to get a divorce under such circumstances were reprehensible, the court nevertheless focused on the sixteen year lapse between the husband's Nevada divorce and his first wife's effort to challenge its validity. Concerned about the reliance of third parties on the Nevada decree, to include subsequent wives, the court found the sixteen year delay of the wife sufficient to bar her action in the absence of a convincing explanation which would excuse her delay in contesting the Nevada divorce.
Consequently, Florida courts will not recognize a Mexican divorce if neither party to the action was domiciled in Mexico. However, the Florida courts may invoke the doctrines of 1aches and estoppel to deny the first wife the opportunity to contest the validity of a Mexican divorce apparently invalid on jurisdictional grounds if the first wife is aware her husband is representing to the world a single or divorced status if third persons are relying upon such representations, and if she unreasonably delays in contesting the validity of his represented marital status.
Therefore, it is the opinion of this office that you would be warranted in determining that Marguerite would be entitled to wife's benefits if you find the following :
(1) that wage earner was representing to the world by words and/or actions that he was single or remarried and third persons relied on such representations; and
(2) that Wary was aware of the wage earner's representations but unreasonably delayed in challenging the wage earner's status.
Should you determine that the facts of this case are insufficient to enable you to make a determination as to whether or not the Florida courts would invoke the doctrines of 1aches and estoppel in accordance with the criteria discussed above, we suggest in the absence of clear precedent that you refer this matter to the Regional Attorney for Region II for his opinion as to the applicability of the law of New York to the facts of this case.