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.