This memorandum is in response to your request for a legal opinion regarding the validity
of a Haitian divorce. Specifically, you have asked whether Texas would recognize this
divorce decree and whether a wage earner's widow is estopped to deny the validity
of the divorce. It is our view that although a Texas court would not be required to
uphold the validity of this Haitian divorce, Elizabeth W~ would be estopped to deny
the validity of the divorce and thus would be ineligible to receive surviving spouse
benefits. The facts and legal analysis upon which we base these conclusions are set
forth below.
Manro O~ and Elizabeth W~ were married on April 30, 1972 in Madison, Connecticut.
Based on information contained in Mr. O~ file, it appears he flew to Haiti on December
29, 1976 to obtain a divorce and remained in Haiti for several days. The divorce decree
was rendered on December 29, 1976 though both parties were residents of Texas. On
December 23, 1976, before the divorce was granted, Elizabeth W~ signed a notarized
statement acknowledging the divorce, submitting herself to the jurisdiction of the
Haitian court and appointing an attorney to appear on her behalf. On that same date,
the parties signed a property settlement agreement which was incorporated into the
divorce decree. On July 11, 1977, Ms. W~ was granted a court order changing her name
from O~ back to W~. She also filed separate tax returns under her maiden name from
1976 through M~ death in 1979. On March 12, 1987, Ms. W~ applied for widow's benefits
on Mr. O~s account and it is this claim for benefits which is the basis for your legal
question.
As you know, to be eligible to receive surviving spouse benefits, a claimant must
meet the requirements set out at §202(e)(1) of the Social Security Act (the Act).
According to §202(e)(1) of the Act, "the widow (as defined in section 216(c))-and
every surviving divorced wife (as defined in section 216(d)) of an individual who
died a fully insured individual ... shall be entitled to a widow's insurance benefit
....
" In order to be eligible as a widow as defined by §216(c), a woman must be the surviving
wife of the decedent. To be eligible as a surviving divorced wife under §216(d)(2),
a woman must have been married to the deceased wage earner for a period of 10 years
immediately before the date the divorce became effective. Because Elizabeth W~ and
Manro O~ were married in 1972 and divorced in 1976 in Haiti, Ms. W~ would not qualify
for benefits as a surviving divorced wife if this Haitian divorce was recognized as
valid since the duration of the marriage did not meet the 10 year requirement. If
the divorce was not recognized, Ms. W would be deemed to have been married to Mr.
O~ until the time of his death and would therefore be eligible to receive benefits
as a widow unless she is estopped from denying the validity of her divorce. The determination
of whether Ms. W~ should be entitled to survivor benefits thus depends initially upon
the law in Texas as it pertains to the recognition of foreign divorce decrees and
estoppel to deny the validity of such decrees. our analysis of this law is as follows.
Article 4 §1 of the United States Constitution, the "full faith and credit" clause,
requires each state of the union to enforce the acts, records or judicial proceedings
"of every other state." This clause does not, however, require states to enforce decrees
of foreign countries. Schacht v. Schacht, 435 S.W. 2d 197 (Tex. Civ. App. Dallas 1968). Should a state decide to do so, the
decision would be based on the doctrine of comity. This doctrine allows a state court
to give full effect to a decision of another jurisdiction based on the mutual interests
of respect and justice. Therefore, while a Texas court could give effect to a Haitian
divorce decree, it is not bound to do so.
A key factor which a Texas court would consider in determining whether to give full
faith and credit to a foreign divorce is whether the parties to the divorce were domiciled
in the foreign country when the decree was entered. S~ , supra. According to the U.S.
Supreme Court, "(u)nder our system of law, judicial power to grant a divorce jurisdiction
strictly speaking is founded on domicile.... Domicile implies a nexus between person
and place of such permanence as to control the creation of legal relations and responsibilities
of the utmost significance." Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 LE 1577 at 1581 (1944). Thus, if the parties to a
foreign divorce were not domiciled in the particular foreign country, the courts will
rarely recognize the validity of the divorce, even where the county had no such domicile
requirement. Turman v. Turman, 99 S.W. 2d 947 (Tex. Civ. App., Ft. Worth 1936), cert. den. 301 U.S. 698; 13 ALR
3d 1419; 24 AM. Jur. 2d §1106.
In Texas, when determining the validity of a foreign divorce, a court will assume
the divorce law of the foreign country is the same as the divorce law of Texas in
the absence of proof to the contrary. Tallant v. State, 658 S.W. 2d 828 (Tex. Civ. App.Ft. Worth, 1983); Webb v. Webb, 461 S.W. 2d 204 (Tex. Civ. App.. San Antonio, 1970). Texas law requires residence
in the state for 6 months and in the county were the divorce is sought for 90 days
by one of the parties before the court in the county can assert jurisdiction over
the parties. TEX. FAM. CODE ANN. §321 (Vernon 1986). Because neither Manro O~ nor
Elizabeth W~ were domiciled in Haiti at the time of their divorce as evidenced by
the fact that the divorce decree itself lists their hometown as Houston, Texas, a
Texas court could refuse to recognize the divorce as valid based on jurisdictional
grounds.
Even though a Texas court could decline to recognize the O~ Haitian divorce, however,
it is our opinion that Elizabeth W~ would nonetheless be estopped from denying the
validity of the divorce. This opinion is based on several grounds.
First, Texas courts have generally held that where parties to a foreign divorce have
consented to the divorce and have submitted to the jurisdiction of the foreign court,
they will be estopped from collaterally attacking the judgment. Dunn v. Tiernan , 284 S.w. 2d 754 (Tex. Civ. App. El Paso, 1955, write ref. n.r.e.) (husband who
obtained bilateral divorce in a Mexican court was estopped from later collaterally
attacking the decree). See also Webb v. Webb, supra (one who has consented to and participated in a foreign divorce is estopped
from collaterally attacking the divorce and thus, the issue of whether the parties
so participated is one of fact for the jury); Moody v. Moody, 465 S.W. 2d 836 (Tex. Civ. App. Corpus Christi, 1971 writ ref. n.r.e.) (a party
who participated in the divorce suit, without objecting to the jurisdiction of the
court, may not thereafter assail the decree in a collateral proceeding on the theory
that one or more of the parties were non-residents). Additionally, the Fifth Circuit
Court of Appeals has recognized and applied this principle of Texas law. In Diehl v. U.S. 438 F. 2d 705, 708 (5th Cir. 1971), the court stated that as a result of Dunn v. Tiernan, "it was settled in Texas that a party who seeks and obtains a Mexican divorce is
thereafter estopped to deny its validity. . ."
In the situation you presented, even though Ms. W~ was not physically present in Haiti
when the divorce decree was rendered, she signed a notarized settlement agreement
dated December 23, 1976, six days before the date of the divorce by which she gave
her full and total consent to the divorce. In addition, on that same date, she signed
a notarized waiver submitting herself to the jurisdiction of the Haitian court and
appointing an attorney to appear on her behalf, which he did. In the absence of some
evidence of duress or coercion on the part of Ms. W~ in signing these documents, it
is our opinion that such evidence of consent would be sufficient to allow a Texas
court to estop Ms. W~ from challenging the validity of the divorced based on the decisions
in D~, W~ and M~ , supra. No allegations of duress or coercion have been made.
Our second basis for concluding that Ms. W~ would be estopped from denying the validity
of the divorce is that in Texas, courts have held that were a party to an invalid
divorce has received money or property pursuant to that divorce, that party will be
estopped from later attacking the decree. Morehouse v. Morehouse , 111 S.W. 2d 831 (Tex. Civ. App. San Antonio, 1938). Similarly, a Texas court has
ruled that when a party has received property pursuant to an annulment decree, she
is estopped from later asserting the invalidity of the decree. Lunt v. Lunt, 121 S.W. 2d 445 (Tex. Civ. App. El Paso, 1938). The records clearly indicate that
Elizabeth W~ and Manro O~ entered into and signed a property settlement that the settlement
agreement was to be determinative of the disposition of all of the property owned
by the parties. This agreement was incorporated into the Haitian divorce decree which
ordered that the provisions of the agreement be carried out. Pursuant to the agreement,
Manro O~ relinquished any rights he had in the home belonging to Ms. W~ in Boulder,
Colorado and in addition, Ms. W~ was to receive her share of personal and community
property. Thus, it appears from the information you supplied that Ms. W~ did receive
property pursuant to the divorce and could therefore be estopped from challenging
the divorce on that basis.
A third factor which would weigh against Ms. W ~ if she asserted the invalidity of
the divorce is the length of time which as expired since the divorce was rendered.
Because it has been over 12 years since the divorce, a court could apply laches against
Ms. W~ . 1_ / In Texas jurisprudence, there is support for the proposition that in
order for laches to apply, a mere lapse of time is insufficient; there must also be
a resulting disadvantage to another. Simpson v. Simpson, 380 S.W. 2d 855 (Tex. Civ. App. Dallas, 1964, writ ref. n.r.e.). Here, there is
nothing in the record to indicate that this 12 year lapse has caused a hardship to
anyone (for example, no party has remarried in the intervening 12 years), and therefore
we do not feel laches would be an independent ground for estoppel against Ms. W~ .
While this discussion could thus be viewed as academic, it should be noted that the
court in D~ indicated that a delay of 22 1/2 months in attacking a foreign divorce
decree would subject the delaying party to a charge of laches and thus, weigh this
factor against the attacking party. We feel, therefore, that a delay of 12 years in
challenging this decree wold be weighed heavily against Ms. W~ in a court's decision
on whether to allow such a challenge.
Finally, it should be strongly emphasized that the court's decision on whether to
allow Ms. W~ to attack the Haitian divorce decree would be based on principles of
equity. As the court stated in D~ :
"Estoppel being an equitable matter and divorce itself being an equitable matter,
the principles of equity must apply. This being true it would not be equitable for
he who was a party to the fraud and who had benefited therefrom, to now cry fraud
to his own advantage...."
284 S.W. 2d at 767. In the instant case, Ms. W~ fully agreed to the divorce, submitted
herself freely to the jurisdiction of the Haitian court, was represented by counsel
in the proceeding and received property pursuant to a settlement agreement incorporated
into the divorce decree. She then acted in full recognition of the decree as valid
by having her name changed in July of 1977 from O~ back to W~ , citing as a reason
therefore the Haitian divorce decree and its failure to restore her maiden name. Further,
she began filing separate tax returns under her maiden name. Now, for Ms. W~ after
12 years to claim this divorce decree is invalid so that she might collect benefits
as Manro O~ widow would be to permit her to enjoy whatever benefits she sought from
the divorce, and also "to now cry fraud to (her) own advantage." In our view, such
a result would appear to a court to be clearly inequitable and we therefore conclude
that a Texas court would estop her from challenging the divorce.
We note that POMS comports with this conclusion. POMS section 00305.465 lists five
grounds upon which a party may be estopped to deny the validity of a divorce. Three
of these grounds appear to be applicable to our situation, as follows:
First, POMS §00305.465, Part B states that a party may be estopped where he or she
was the defendant in a divorce action and accepted the court's jurisdiction. As we
have previously shown, Ms. W gave her full consent and submitted to the jurisdiction
of the Haitian Court. Next, Part D states that estoppel may be found where a party
has accepted property or money or a property settlement on the basis of the divorce
decree. Ms. W agreed to the property settlement incorporated into the Haitian divorce
and received a home and personal property pursuant to the settlement. Finally, Part
E notes that estoppel may lie where the party otherwise accepted or acted in
recognition of the decree as valid (e.g. knew of the divorce and allowed it to stand
unchallenged for a long time). Ms. W ~ has not only let the divorce go unchallenged
for 12 years, she has had her name changed, specifically citing to the Haitian divorce
as one of her reasons for making the change.
In conclusion, the law and facts in this case indicate that because Manro O~ and Elizabeth
W~ were domiciled in Texas rather than Haiti when the divorce decree was entered,
a Texas court could refuse to recognize the Haitian divorce as valid. However, Elizabeth
W~ is the only person with standing to challenge the decree and because she submitted
herself to the jurisdiction of the Haitian court, agreed to a property settlement,
and then subsequently acted in recognition of the divorce as valid, we believe she
would be estopped to deny the validity of the divorce. Therefore, we believe the divorce
would stand as valid making Ms. W~ ineligible to receive widow's benefits under §202(e)(1)
of the Act. Likewise, because she was married only 4 years prior to the divorce rather
than 10 years as required by §216d(1) of the Act, she also will be ineligible as a
surviving divorced spouse.
1_ / Laches is an equitable doctrine which is defined as a failure to do something
which should be done or to claim or enforce a right at a proper time. Black's Law
Dictionary (5th Ed. 1979). The effect of laches is to prevent one from bringing a
claim after the proper time for bringing the claim has elapsed.