The claimant is filing for benefits as the NH's divorced spouse. Mississippi would not recognize the claimant's Mexican divorce from the NH. However, since the claimant would be estopped from claiming that the divorce was invalid to obtain benefits as the NH's legal spouse, she can qualify as the NH's divorced spouse if she otherwise qualifies for benefits, per POMS GN 00305.180C.2.

You have requested our opinion as to whether a Mexican divorce is valid in the State of Mississippi and the legal status of Mr. P~'s first wife. We have concluded that the first wife qualifies for divorced spouse's benefits on Mr. P~'s account.

Bobby D. P~, the number holder (NH), resides in Mississippi and has been receiving retirement benefits since October 1997. He married Julia T. P~, his first wife, in Oklahoma in 1951. He divorced Julia on May 27, 1970, in Mexico. He did not reside in Mexico and went there only to obtain the divorce. Julia was not present in Mexico for the divorce. NH gave Julia a copy of the Mexican divorce record and a letter from a Texas attorney opining that the Mexican divorce was not valid. Julia did not challenge the divorce, but did not re-marry. NH married Carolyn J. B~ P~ in June 1970.

Julia filed for retirement benefits on her own account in 1995, stating that she was divorced. She then filed a claim in April 2001 as the divorced spouse of NH.

Julia would not be recognized as the legal spouse of NH, even though the Mexican divorce was not valid. Generally, a state need not recognize foreign divorce decrees. Williams v. North Carolina, 325 U.S. 226 (1945). Mississippi courts have held that full faith and credit will not be granted to divorces obtained in a foreign country when neither spouse was domiciled in that country. Carr v. Carr, 724 So.2d 937, 939-40 (Miss. 1998) (It is against public policy to recognize a divorce when a spouse traveled to a foreign country solely to secure a divorce and was not a domiciliary of the country and had no intention of becoming one). Because NH went to Mexico only to obtain a divorce and Julia did not go along, Mississippi law would not recognize the Mexican divorce. See generally POMS PR 05101.005. Nevertheless, Julia would be estopped from claiming that the divorce was invalid to obtain benefits as a legal spouse. Julia took no action to contest the divorce for over 30 years after being advised of its questionable validity. See POMS GN 00305.175 (2)(e).

Julia was not validly divorced from NH, but cannot claim benefits as a legal spouse. She could, however, obtain benefits as a divorced spouse, if she otherwise qualifies for benefits. POMS GN 00305.180(C) (2) (If a claimant is estopped to assert the invalidity of a divorce and thus cannot be considered the worker's spouse, the claimant can obtain benefits as a divorced spouse or surviving divorced spouse if otherwise qualified).

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

Where there was an attempt at obtaining a divorce on the part of the widow, but no decree was ever issued because of lack of service, Illinois would not apply the Mississippi law of estoppel to deny the validity of the divorce to preclude the widow who subsequently remarried from challenging the validity of the divorce in her claim for benefits as the widow of the other party to the divorce proceedings. (B~, Hilliard, ~ -RAV (A~), to ARC, 10/16/85.)

This is in response to your request for our assistance in determining whether the claimant, Mary M. W~ ("Mary'), is entitled to Social Security benefits on the account of her first husband, Hilliard B~ ("Hilliard"). Specifically, you inquired whether Illinois would apply the principle of estoppel established under Mississippi law which would preclude Mary from claiming benefits on Hilliard's account. We conclude, for the reasons set forth below, that Illinois would not apply the Mississippi doctrine of estoppel, and that Illinois would consider Mary legally married to Hilliard.

Based upon the materials furnished to us in the claims folders, the facts are as follows. Mary married Hilliard on January 29, 1938 in Mississippi. They separated and on October 18, 1948, a divorce action was filed in Mississippi by Mary. Apparently, Hilliard could not be located and served so a divorce decree was never entered. Your office has searched the records in Mississippi and confirmed that no divorce decree was entered. Mary claims that her lawyer told her that six weeks after filing for divorce, the divorce was final. Apparently relying upon that information, Mary married Paul W~ December 24, 1955 in Indiana. They were divorced in May 1984 in Ohio. Paul had been divorced prior to marrying Mary, but has not re-married after his divorce from Mary. On August 13, 1984, Mary applied for spouse's benefits on Paul's account. On that application she stated that she believed she was divorced from Hilliard. On September 25, 1984, you denied Mary's application because you determined that Mary's marriage to Hilliard had not ended at the time she married Paul.

On October 22, 1984, after being denied benefits on Paul's account, Mary applied for widow's benefits on Hilliard's account. Hilliard died on June 15, 1979, domiciled in Chicago, Illinois. Mary's entitlement to benefits is dependent upon whether she is the widow of Hilliard within the meaning of Section 216{h){1)(A) of the Social Security Act at the time she applied for benefits. The law of Illinois would apply because it was Hilliard's domicile at the time of his death. We have previously addressed the question of the applicability of the Mississippi doctrine of estoppel to Illinois cases where there was no divorce between the claimant and her first spouse. Minnie B~, RA V (A~) to W~, Assistant Regional Commissioner, SSA, 11/4/82. (Copy attached). However, in that case there was no question that the claimant had neither obtained nor attempted to obtain a divorce. We believe that Mary's attempt to obtain a divorce does not alter our conclusion that she would not be estopped from denying the validity of her subsequent marriage. See Ben A~, RA I {W~) to Assistant Regional Commissioner, 12/13/82.

The only Illinois cases we have found in which a spouse has been estopped from denying the termination of a former marriage have involved situations in which there was a final divorce decree entered. See e.g.; In re Marriage of P~ , 131 Ill. App. 3d 343, 475 N.E. 2d 1006 (1985); In re Marriage of G~, 90 Ill. App. 3d 443, 413 N.E.2d 153 {1980). We have not found any

Illinois cases in which an individual who has separated from his spouse, but who has not divorced and who entered into a subsequent bigamous marriage, has been estopped from denying the termination of the former marriage. We believe that an "attempt" to secure a divorce without actually obtaining a divorce would not bring this case within those cases that rely upon a divorce decree being issued in their analysis. See Davis v. Califano, 603 F.2d 618 (7th Cir. 1979). 1/ ....

Accordingly, we reaffirm the conclusions reached in our November 4, 1982 memorandum and conclude that if Mary and Hilliard were validly married 2/ and never divorced, that Mary's subsequent marriage would not, under Illinois law, estop her from asserting that she is Hilliard's widow.

1-/ Moreover, based upon the information in the claims folder, it would appear inconsistent for SSA to hold that Mary was not entitled to benefits on her second husband's account because her first marriage was not terminated and then have SSA hold that she was estopped from denying the validity of her second marriage.

2-/ There is no marriage certificate in the file. The validity of the marriage appears to be presumed. We recommend that you follow normal procedure to make a determination concerning the validity of that marriage if you have not already done so.

MARRIAGE -PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTIONS OF DEATH OR DIVORCE) -MISSISSIPPI

Under Mississippi law, the presumption of the validity of the last marriage may be rebutted by proof showing where each party to the prior marriage resided up to the time of the second marriage and the procurement from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. Smith v. Weir, 387 So.2d 761 (1980). (W~ , S.T., ~ -RAIV (W~), to ARC, 10/14/83.)

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

In Tillman v. Williams, 403 So.2d 880 at 881 (1981) the Mississippi Supreme Court clarified the holding in earlier Mississippi cases that 'desertion or' abandonment is held to estop a spouse from inheriting from the other,' by noting that in the absence of legislation on the abandonment question, the inheritance statute has to be strictly construed unless there is a clear desertion and abandonment that sets up estoppel. (W~, S.T., ~--RAIV (W~), to ARC, 10/14/83.

Your memorandum of September 1, 1982, requested our opinion as to whether Louella W~ meets the definition of legal widow of S.T. W~, the deceased number holder who died on July 6, 1972, while domiciled in Mississippi.

The facts as contained in the file indicate that in July 1972 Orean W~ was awarded mother's benefits based on her February 20, 1953, ceremonial marriage to S.T. W~ in Lawrence County, Mississippi. Mr. W~ and Orean were living together when he died; they had thirteen children. On her application for mother's benefits, Orean stated that the deceased wage earner (DWE) had a prior marriage to Louella which ended in divorce several years before his marriage to Orean.

On May 17, 1982, Louella W~ filed an application for widow's benefits and submitted proof of her ceremonial marriage to S.T. W~ on January 12, 1941, in Lawrence County, Mississippi. She stated that she and Mr. W~ separated in 1942 and she thought Mr. W~ had secured a divorce; however, when she searched the Jefferson Davis County, Mississippi, records, a divorce decree could not be located.

Louella W~ stated that she lived in Jefferson Davis County and in Lawrence County in Mississippi. Orean W~ and S.T. W~ 's sister, Pauline P~, stated that Mr. W~ lived in New Hebron, Lawrence County, from his birth until 1958 when he moved to Hattiesburg, Forrest County, Mississippi. No other places of residence are alleged. The number holder's mailing address was shown as a rural route in Hattiesburg, Forrest County, Mississippi; however, his place of residence at death was shown as Lamar County, Mississippi.

A search of the court records for Lawrence County, Lamar County, Jefferson Davis County, and Forrest County for the years 1941 through 1972 revealed no divorce for S.T. and Louella W~. A record was located in Jefferson Davis County showing that S.T. W~ filed a divorce action against Louella W~ in May 1949. The cause (Case No. 3323) was dismissed without prejudice on May 22, 1950. No other record could be found.

Your memo queries whether, under Mississippi law, the presumption of the validity of the last marriage is rebutted by the finding that no divorce occurred at any place of residence on either Louella W~ or the number holder during their life times; or, whether the ruling in Alma L. Blackwell v. Flemming, (U.S. District Court, Southern District of Mississippi, CCH 14,118 (5/01/61)), prevents a rebuttal of said presumption because of the possibilities of error on the part of officials in recording all proceedings or in searching the records, or of a refutation of the certificate of the preacher who performed the number holder's first marriage.

It is our opinion that the ruling in Blackwell does not preclude a rebuttal of the presumption of the validity of the last marriage. This presumption is very strong and can be rebutted only by proof so cogent and conclusive as to fairly preclude any other result; however, the holding in Blackwell appears to have been based on a finding that the first wife was estopped by her conduct from rebutting the presumption of the validity of the last marriage. Blackwell is not, however, characteristic of the holdings in cases in which the validity of the last marriage is at issue absent reasons for estoppel.

In the 1980 case of Smith v. Weir, 387 So.2d 761, the Mississippi Supreme Court addressed the presumption of the validity of the last marriage and considered the degree of proof necessary to rebut the presumption, at 763-764:

Where there is proof of a marriage ceremony, the law will presume the capacity of the parties, consent of the parties, and all essentials to the validity of the marriage. The presumption was early recognized by this court in Hull v. Rawls, 27 Miss. 471 (1854), and has been consistently applied ever since.

The rule of law was perhaps best stated in Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735' (1954) as follows:

It is well-established that when a person has entered into several successive marriages, a presumption arises in favor of the validity of the second or last marriage. And this presumption of validity is applicable to a subsequent common-law marriage, as well as to a subsequent ceremonial marriage. A~., 14 A.L.R.2d 7, 19; 55 C.J.S. Marriage §43, pp. 887-892, 896. A subsequent marriage in fact raises the presumption that a former marriage has been terminated by divorce or by the death of a prior spouse. These presumptions are based upon public policy. The burden of adducing evidence to the contrary rests on the party who attacks it. 55 C.J.S. [Marriage, §43], pp. 890-891. Of course this presumption can be rebutted by evidence excluding the possibility of a divorce or death of a prior spouse, 14 A.L.R.2d 45, but that burden of proof is a difficult one: "It has been declared that, an existing marriage being shown, the presumption of its validity is so strong that proof of a former subsisting marriage, in order to be sufficient to overcome this presumption, must be so cogent and conclusive as to fairly preclude any other result." (221 Miss. at 662, 74 So.2d at 737).

In Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So.2d 622 (1955) ... the court in considering the kind of proof necessary to overcome the presumption stated:

The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. (225 Miss. at 421, 83 So.2d at 625).

See also, In re Estate of Erwin, 317 So.2d 55 (1975); Ramphrey v. Ramphrey, 243 Miss. 184, 137 So.2d 902 (1962). We consider the Smith v. Weir, supra, holding to be controlling as to the degree of proof necessary to rebut the presumption of the validity of the last marriage in Mississippi.

The facts in the record indicate that subsequent to their 1941 marriage and prior to the wage earner's later marriage in 1953, Louella W~ lived in Lawrence and Jefferson Davis Counties. During the same time period, the wage earner lived in Lawrence, Forrest, and Lamar Counties. Apparently, at no point in time during the period in question, was the whereabouts of either Louella or S.T. W~ unknown. A search of the records in Lawrence, Lamar, Jefferson Davis and Forrest Counties has revealed no final divorce. It is noted that the strong suggestion of the court was that it was best to procure certificates of search showing that no divorce or annulment was granted; however, in this claim, report of record searches would appear to be in compliance with the court's guidelines.

Nonetheless, we do not find that Louella W~ is entitled to benefits on the account of S.T. W~. Although we concluded that Louella W~ has produced evidence sufficient to rebut the presumption of the validity of the last marriage, we further conclude that Louella W~ is estopped from asserting her claim under the Mississippi Supreme Court's holding in Tillman v. Williams, 403 So.2d 880 (1981). In Tillmann the court did not apply the doctrine of estoppel to prevent a husband from inheriting from his wife even though they had separated 15 to 20 years before the wife's death and the husband had moved his abode to an adjoining county. The court declined to apply estoppel against the husband's petition inasmuch as there was no evidence of any attempt of remarriage or disclaimer of marriage by either party during the years of separation or that either attempted to obtain a divorce.

The Tillman court clarified earlier holdings made in Walker v. Mathews, 191 Miss. 489, 3 So.2d 820 (1941) and In Re Marshall's Will, 243 Miss. 472, 138 So.2d 482 (1962), where there appeared a sentence indicating that "desertion or abandonment is held to estop a spouse from inheriting from the other." The Tillman court noted that the Mississippi legislature had not seen fit to enact any legislation on the abandonment question, therefore, inheritance statutes were to be strictly construed absent a clear desertion and abandonment of the marriage relation.

In Walker, supra, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relation.

In Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267 (1964), the court held that even an adulterous affair did not amount to desertion "in the absence of a statute or showing of a bigamous marriage."

In Baugh v. Brimage, 242 Miss. 459, 135 So.2d 701 (1961), a surviving husband was held estopped to inherit from his deceased wife's estate when he had entered into a bigamous marriage and was living with still another woman with whom he had several children.

In Re Marshall's Will, supra, the surviving wife lived with various men after leaving her husband. Furthermore, the husband, prior to his death, had married another woman. The abandonment of the marriage relationship was clear.

It is our opinion that the assertions contained in the decedent's 1949 Bill for Divorce to the effect that Louella had deserted him in 1943 and Louella's statement that she thought they were divorced would tend to indicate that Louella W~ presumed that she was single and had abandoned the marriage relation. On the basis of her abandonment of the marriage relation you would be warranted in finding that Louella W~ is estopped from asserting her claim as the widow of S.T. W~. If, however, Louella W~ were able to produce evidence tending to indicate that she had not abandoned the marriage relation (for example, records showing her status as married, records indicating S.T. W~ as her husband, representation to third parties that Louella was currently married to S.T. W~) she then would not be estopped from asserting her claim as the widow of S.T. W~.