PR 06405.017 Indiana

A. PR 86-031 Validity of Dominican Republic Divorce and Application of Indiana Law of Estoppel -Joseph F. F~, Jr.,

DATE: July 23, 1986

1. SYLLABUS

DIVORCE -RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -INDIANA

Under Indiana law a divorce obtained in the Dominican Republic where neither of the parties is domiciled is invalid. However, the parties are estopped from asserting the invalidity of the foreign divorce where their conduct before and after the issuance of the decree would be inconsistent with a finding rendering it invalid. (F~, Joseph F., Jr., -RAV (A~), to ARC, Programs, 07/23/86.)

2. OPINION

This is in response to your request for our assistance in determining whether Elizabeth F~ ("Elizabeth") is entitled to Social Security benefits as the legal spouse of Jospeh F. F~, Jr. ("Joseph"). We conclude, for the reasons set forth below, that the Dominican Republic divorce obtained by Elizabeth and Joseph 1s not valid; nonetheless Elizabeth, the claimant is estopped to assert the invalidity of the divorce. Accordingly, under Indiana or law, Elizabeth is not the wife of Joseph.

FACTS

Based upon the materials furnished to us, the relevant facts are as follows. The wage earner, Joseph, married Elizabeth, the claimant, in Indiana on July 21, 1938. On May 9, 1977, Joseph obtained a divorce in the Dominican Republic with Elizabeth's consent. At the time, both parties were domiciled In Indiana. Joseph resided 1_/ in the Dominican Republic for one day prior to the entry of the divorce.

There is no dispute that the divorce was obtained by mutual consent, as indicated on the divorce decree. Indeed, Elizabeth's attorney filed a waiver to contest the divorce. After the divorce, Joseph conveyed the jointly held interest in their home to Elizabeth. This property transfer was not part of the decree and there is no specific information in the file stating that this transfer was Elizabeth's consideration for not contesting the divorce decree.

Joseph remarried on August 1, 1979. Elizabeth filed for wife's benefits on August 4, 1982, although she stated that she was divorced from Joseph. Both parties are still domiciled in Indiana.

You have indicated that you requested our legal assistance because of the possible legal ramifications regarding Joseph's second spouse. You have indicated that Elizabeth is currently being paid benefits as a divorced spouse, and the amount of those benefits are the same regardless of the validity of the divorce. 2_/

DISCUSSION

Because all of the relevant actions, the marriage, the domicile of parties at the time of divorce, and the domicile of the parties at the time of claimant's application occurred in Indiana, Indiana is the state law governing this case. Indiana follows the general rule that the courts of the United States will not recognize a divorce obtained in a foreign country if neither spouse is domiciled in that country at the time of the divorce. See F~, Jonathan, ~ RA v (Phelps) to Dist. Mgr., Indianapolis, 2/15/73. Accordingly, Indiana will not recognize a Dominican Republic divorce where neither party was domiciled in the Dominican Republic at the time of the divorce.

The question remains, however, even assuming the invalidity of the divorce, is Elizabeth estopped from attacking the validity of the divorce. Under Indiana law, a party can be estopped to deny the validity of a foreign divorce by his conduct prior to and after entry of a foreign decree. Indeed, the Indiana courts have addressed an almost identical case to the one presented here.

In Scherer v. Scherer, 405 N.E.2d (Ind. Ct. App. 1980), the Appellate Court held that a husband was estopped from attaching the validity of a Dominican Republic divorce decree. In that case, the wife had filed the divorce in the Dominican Republic court while her husband had voluntarily appeared through a special power of attorney. Six months after the Dominican Republic decree, the husband filed a petition for dissolution of the marriage in Indiana and prayed for an equitable distribution of the marital property. The wife opposed this petition arguing that the Dominican Republic divorce decree barred the Indiana proceeding, and that her husband was estopped to challenge the validity of the decree because: 1) he voluntarily submitted to the jurisdiction of the court, 2) he accepted the benefits of the decree, and 3) she had relied upon the validity of the decree and had remarried. Id. at 42-43.

In holding that the husband was estopped from attacking the validity of the decree, the court noted that notwithstanding the general invalidity of a divorce decree rendered in a foreign nation where neither spouse was domiciled, a party attacking, the decree may be barred from securing a judgment of invalidity. Id. at 44. The court noted that the husband's attack on the decree was inconsistent with his actions before and after the decree. Id. at 46. That analysis is equally applicable here.

Elizabeth's actions of consenting to the divorce, apparently accepting the house as a property settlement, and stating in her benefits' application that she was divorced is inconsistent with her claim that she is Joseph's wife. Moreover, Joseph relied upon that decree and remarried. Elizabeth has waited five years before indirectly attacking the decree. In Scherer, a six-month delay was considered too long. In summary, our review of Indiana law indicates that Elizabeth would be estopped from attaching the validity of the Dominican Republic decree. See Samson v. Samson, 466 N.E.2d 770, 772 (Ind. Ct. App. 1984).

CONCLUSION

In conclusion, we believe that based upon the facts presently before us, Elizabeth is not Joseph's wife. Accordingly, we conclude that Elizabeth is not entitled to Social Security benefits as the wife of Joseph.

1_/ Mere presence in a place, unaccompanied by an intent to live there permanently, or at least indefinitely, will not serve to make such a place a domicile.

2_/ Although we are always willing to provide legal assistance, we believe this case is not ripe for an opinion because a question may never arise regarding Joseph's second spouse. Moreover, even if such an issue did arise the nature of the question would be dependent upon the spouse's status at that particular time, i.e. whether she is presently married to Joseph, and the domicile of the parties. Nonetheless, in this case, we have researched the issues you requested.


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PR 06405.017 - Indiana - 10/22/2008
Batch run: 01/27/2009
Rev:10/22/2008