Under Virginia law, the State could refuse to recognize the foreign divorce since neither spouse was a good faith domiciliary in the foreign country at the time of divorce. However, the State would find the divorce valid since there is a strong presumption that a subsequent marriage is valid and that prior marriages were terminated by divorced or death. Virginia court would apply the principles of of estoppel and laches to find the divorce valid and bar any challenge to the validity of the divorce.

OPINION

We have received your April 3, 2008 request for a legal opinion as to "whether New York Courts recognize the validity of the Mexican divorce between Number Holder ("NH") and Bonner M. B. M~ and if New York applies the estoppel principle for divorce and if Bonner M. B. M~ is the legal spouse of the Number Holder."

We conclude that:

1) The laws of Virginia govern in this case

2) The finding of PR 02-047 is dispositive of this case

3) Virginia would recognize the validity of the Mexican divorce

FACTS*

A marriage license shows the NH married Bonner M~ B. in Houston, Texas, on June 2, 1960. According to the Columbia, Maryland District Manager's memorandum, in November, 1970, the NH was living in New York. In November 1970, Mrs. M~ was living in Texas, according to her caregiver. On November 6, 1970, the NH and Mrs. M~ entered into a _*separation agreement in Houston, Texas. According to the NH, he became a resident of Mexico for one day and obtained a divorce from Bonner M~ on 11/7/70.

A copy of the divorce decree from the first civil court of Ciudad J~, Chihuahua, Mexico, states that the NH personally appeared before the subscribing judge, ratified the complaint including his express submission to the jurisdiction and competence of the court, and submitted the certificate of his inscription in the Official Registry of the City of Chihuahua. An attorney for Ms. Bonner M~ appeared and answered the complaint, and expressly submitted his client to the jurisdiction of the court. The divorce decree further approved and adopted the existing separation agreement.

The NH filed a claim for retirement benefits on April 1, 1999. According to that claim, the NH remarried in February 1975 in Florida.

Bonner M~ filed an application for spouse's benefits on the NH's record on February 15, 2008. You have informed us that the NH is alive and receiving retirement benefits in Virginia. You have told us that based on ORS, CSR, his MBR, and the THIS query, you believe the NH resided in the state of Virginia at the time Bonner M~ filed her claim for benefits on the NH's account.

ANALYSIS

GN 00305.170 states that the determination of the validity of a divorce is based on the law of the state of the worker's domicile at the time of filing of an application for divorced spouse's benefits. In this case, assuming that Mr. M~ was domiciled in Virginia at the time of Bonner M~'s filing for divorced spouse's benefits, the law of Virginia would apply to determine whether the divorce was valid.

The analysis from a precedential opinion regarding Virginia law (PR 02-047) found in the POMS at PR 06210.052, governs the analysis in this case. In the Virginia case of Richard H. M~, the Agency determined that Virginia would find that a Mexican divorce was valid under circumstances parallel to those in the M~ divorce.

In the Richard H. M~ case, Isabelle L. M~ married Donald T~ on June 4, 1952 and obtained a divorce from J~, Mexico on November 29, 1963. Both parties were domiciled in New York at the time of the divorce. Isabelle appeared in person in the Mexican court and proved that she was registered in the official book of residents of J~. Donald T~ was represented by an attorney and expressly submitted to the jurisdiction of the court. A separation agreement previously entered into by the couple was incorporated into the divorce decree. Both parties remarried. Isabelle's second husband, Richard M~ died on October 29, 2001 and Isabelle applied for surviving spouse's benefits on Richard M~'s record.

The Agency determined that under Virginia law, while generally a foreign divorce will be recognized as valid, that is not the case when neither spouse was a good-faith domiciliary in the foreign country. So the Agency concluded that Virginia could refuse to recognize the divorce because neither Isabelle nor Donald T~ was domiciled in Mexico at the time of the divorce. However, the Agency went on to find that a Virginia court would likely find the divorce valid because there is a strong presumption under state law that a marriage last-in-time is valid and that prior marriages were terminated by divorce or death.

Additionally, the Agency determined that a Virginia court would apply the doctrine of estoppel to find the divorce was valid, since both Isabelle and Donald T~ submitted to the Mexican court's jurisdiction. Alternatively, the court would apply the doctrine of laches to preclude any challenge to the divorce's validity because of the delay in time before any attack on the divorce and the ex-husband's remarriage.

The M~ divorce parallels the factual situation in the Richard M~ case, and therefore, we conclude that Virginia would find the Mexican divorce to be valid.

Very truly yours,

Barbara L. S~

Chief Counsel

By: ____________

Jennifer S. R~

Assistant Regional Counsel

_* The only documents provided are the divorce decree, marriage license, and copy of Mrs. M~'s application for spouse's benefits. The remainder of the facts are derived from the memorandums from your office and the Columbia, MD, District Manager. This opinion is based on the facts as presented. However, we recommend verification of the address of the NH at the time of the filing of Mrs. M~'s application since it is crucial to the application of the appropriate state's law.

A Virginia court would apply the principles of estoppel and laches to bar any challenge to the validity of the surviving spouse claimant's Mexican divorce from her prior husband, and would also recognize her subsequent marriage to the NH as valid.

Introduction

You have requested an opinion on whether Virginia courts would apply the doctrine of estoppel to recognize the validity of the Mexican divorce between the number holder's surviving spouse, Isabelle L. M~, and her first husband, Donald T~. You have also asked whether the Virginia courts would recognize the subsequent marriage between Isabelle and Richard H. M~, the number holder, thereby entitling Isabelle to receive surviving spouse benefits, including retroactive benefits and a lump sum death payment on Richard M~'s record.

For the reasons explained below, we conclude that a Virginia court would apply the principles of estoppel and laches to bar any challenge to the validity of the Mexican divorce and that it would also recognize the subsequent marriage between Isabelle and Richard M~ as valid.

Background

As we understand the facts, Isabelle married Donald T~ in New York on June 4, 1952. On November 29, 1963, Isabelle obtained a divorce from Donald T~ in Juarez, Mexico. At the time of the divorce, both parties were domiciled in New York. The divorce decree states that Isabelle personally appeared before the court in Mexico to file her petition for divorce, and that she had proved by certificate of registration that she was registered in the official book of residents of Juarez, Mexico. Donald T~ did not appear at the Mexican proceedings, but he was represented in Juarez by a Mexican attorney who served as his legal proxy. The divorce decree indicates that Donald T~ concurred in the divorce and that he expressly submitted to the jurisdiction of the Mexican court. The separation agreement that was entered into by the couple on November 6, 1963 was incorporated into the Mexican divorce decree. The divorce decree also declared that the couple's minor child would remain under the custody of Isabelle.

On the day of her Mexican divorce decree from Donald T~ (November 29, 1963), Isabelle married Richard M~, the deceased number holder, in Juarez, Mexico. Isabelle and Richard M~ remained married until Richard's death on October 29, 2001. Donald T~ married Lillian T~ on September 27, 1969 in Las Vegas, Nevada, and he is still currently married to her.

On November 19, 2001, Isabelle applied for surviving spouse and lump sum death benefits on Richard M~'s record. She provided SSA with authenticated copies of the divorce decree and marriage certificate. In recent contacts with SSA, Isabelle stated that she did not believe that she established her residency in Mexico when she obtained the divorce. She explained that her lawyer made all the arrangements for her and that she only stayed in El Paso, Texas, for a day or two, to obtain the divorce and to marry Richard M~. She indicated that she always assumed that her divorce and subsequent marriage to Richard M~ were valid.

Discussion

Pursuant to section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. § 416(h)(1)(A), a claimant is considered the widow of an insured individual if the courts of the individual's domicile at the time of his death would find that the claimant and the insured individual were validly married when he died. In the absence of a valid marriage, eligibility may still be found if the claimant has the same status respecting the devolution of intestate personal property as a legal spouse. In this case, because Richard M~ died a Virginia domiciliary, Isabelle's marital status must be evaluated under Virginia law.

Validity of the Mexican Divorce

Generally, in Virginia, a decree of divorce granted in a foreign country by a court having jurisdiction will be recognized as valid under the doctrine of comity. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1363, n.10 (E.D. Va. 1980). This does not mean, however, that all foreign divorces will be recognized as valid. In Virginia, a divorce obtained in a foreign country will normally not be recognized as valid if neither spouse was a good-faith domiciliary in that country. See Harrison v. Harrison, 214 F.2d 571, 573 (4th Cir. 1954) (affirming a Virginia district court decision which held that a Mexican divorce obtained by plaintiff's husband was lacking in extraterritorial validity because plaintiff's husband had never acquired a bona-fide domicile in Mexico). Under Virginia law, however, there is also a strong rebuttable presumption that a marriage last-in-time is valid, and that any prior marriage was terminated by death or divorce. Hewitt, 490 F. Supp at 1362; see also Parker v. American Lumbar Corp., 56 S.E.2d 214, 216 (Va. 1949) (where both parties to first marriage are shown to be living at time of second marriage of one of the parties, it is presumed in favor of the second marriage that the first marriage was dissolved by divorce).

In this case, it does not appear that either Isabelle or Donald T~ were domiciled in Mexico at the time of the divorce. Therefore, a Virginia court could potentially refuse to recognize the divorce on jurisdictional grounds. However, as stated above, because of the strong presumption in favor of finding a second marriage valid, it is also possible that a Virginia court could find the divorce valid, given that both Isabelle and Donald T~ each remarried after the divorce.

Nevertheless, even if a Virginia court declined to recognize the Mexican divorce on jurisdictional grounds, we believe that it would still apply the equitable doctrine of estoppel and/or laches to find the divorce to be valid. In Virginia, it is a hallowed rule of equity that a complainant must come in with clean hands. McNeir, 16 S.E.2d at 633. If a complaint's own conduct brought about the conditions of which he now complains, he is estopped from obtaining relief. Id. In this case, Donald T~ could conceivably challenge the validity of the Mexican divorce on the grounds that he was not the moving party. However, while Donald T~ did not obtain the divorce, he consented to it in advance and he was represented at the proceedings by a Mexican attorney who served as his legal proxy. In addition, the Mexican divorce decree incorporated separation agreement that he and Isabelle entered into a few weeks before the divorce. It also affirmed the custody of the minor child that had been arranged. Thus, Donald T~ was an active consenting party to the divorce. Accordingly, we believe that a Virginia court would apply equity and find that he did not have "clean hands" to challenge the validity of the divorce decree.

We also believe that any challenge to the divorce by Donald T~ would be defeated by application of the equitable doctrine of laches. There is no absolute rule as to what constitutes laches.

The court will examine each case according to its own particular circumstances.

Bartsch v. Bartsch, 132 S.E.2d 416, 422 (Va. 1963). In Bartsch, the Virginia Supreme Court of Appeals held that it was not necessary to determine whether a husband was a bona fide resident of a different state when he obtained a divorce on his own because whatever rights his wife had to assail the out-of-state decree were lost by laches. Id. at 421-22. The wife had waited until her ex-husband's death, twenty-one years after the divorce, to challenge the validity of the divorce. In the interim, the husband had remarried. Because of the wife's long delay in legally attacking the divorce and the fact that her ex-husband had remarried, the court applied laches to defeat her efforts to overturn the divorce.

In the instant case, like in Bartsch, it would be highly prejudicial to Isabelle if her divorce decree could now be attacked as invalid. The Mexican divorce was obtained over thirty-eight years ago. As far as we are know, there has never been a challenge to the divorce. Isabelle always assumed the divorce decree was valid and there is no indication that Donald T~ assumed any differently. Indeed, presumably relying on the divorce's validity, both Isabelle and Donald married again after the divorce. Accordingly, considering these circumstances, we believe that a Virginia court would probably apply the doctrine of laches and/or estoppel and bar Donald or any other party from contesting the validity of the Mexican divorce decree at this late date.

We note that the Program Operations Manual System (POMS) also supports the application of estoppel in this case. GN 00305.175 of the POMS lists five grounds upon which a party may be estopped from denying the validity of a divorce. Two of these grounds appear to be applicable here. First, GN 00305.175A.2.b of the POMS states that a party may be estopped where, as here, he or she was the defendant in a divorce action and accepted the court's jurisdiction. Second, GN 00305.175A.2.e of the POMS 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).

There may be situations where SSA may want to challenge the validity of an invalid divorce even if a party to the divorce is estopped from doing so. See Slessinger v. Secretary of Health and Human Servs., 835 F.2d 937, 941 (1st Cir. 1987) (holding that because SSA was not a party to the divorce, the principle of estoppel did not prevent SSA from challenging an invalid foreign divorce decree); see also SSR 88-15c (adopting Slessinger as its official position). In this case, however, given the peculiar facts of this case, not the least of which was the fact that the divorce was obtained over thirty-eight years ago, we believe that even if SSA decided to collaterally attack the validity of the divorce decree, a Virginia court would still utilize the equitable principles discussed above and find the divorce to be valid.

Accordingly, it is our opinion that a Virginia court would likely decline to overturn the Mexican divorce decree based on the equitable doctrine of estoppel and/or laches. Therefore, we conclude that the Mexican divorce could stand as valid.

Second Marriage is Presumed Valid.

In Virginia, the general rule is that court will find a marriage valid if that marriage is valid under the law of the state or country where it was celebrated, unless it is repugnant to public policy. Farah v. Farah, 429 S.E.2d 626 (Va. App.1993). The public policy of Virginia is to uphold the validity of a marriage if at all possible. Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 857 (E.D. Va. 1968).

As stated above, in Virginia, where two marriages of the same person are shown, the second marriage is presumed to be valid, and such presumption is stronger and is accorded greater weight because it is presumed that the prior marriage was terminated by death or divorce. Hewitt, 490 F. Supp at 1362; Parker, 56 S.E.2d at 216. The presumption supporting the validity of the second marriage arises because the law presumes morality and legitimacy, not immorality and bastardy. Parker, 56 S.E.2d at 216. The presumption in favor of validity can be rebutted, but the evidence in rebuttal must itself be strong. Hewitt, 490 F. Supp at 1364. The presumption is "not one which disappears or 'goes out the window' . . . when met with rebuttal evidence. Rather, it is a presumption that continues to have weight, due to the strength of the policies that give it purpose, in the face of contrary evidence." Id. The burden, therefore, is on the contesting party to document in every reasonable manner the absence of a divorce. See DeRyder v. Metropolitan Life Insurance Co., 145 S.E.2d 177, 181-82 (Va. 1965); see also Parker 56 S.E.2d at 216 (testimony of first wife that she had never obtained a divorce from her first husband and that she had never had any notice of any divorce obtained by him was insufficient to rebut presumption that his second marriage to claimant was valid).

Based the current facts of this case, we believe that a Virginia court would apply the presumption in favor of finding the second marriage valid between Isabelle and Richard M~. We do not believe that a contesting party could reasonably show the absence of a divorce between Isabelle and Donald T~. As stated above, both Isabelle and Donald T~ participated in the divorce proceedings. Moreover, in the thirty-eight years since the divorce, there is no evidence that either one of them challenged its validity. In addition, an authenticated copy of the Mexican divorce decree was submitted to SSA, as well as an authenticated copy of the marriage certificate. Thus, there was an official record of both the divorce and the subsequent marriage proceedings. In addition, as stated above, the fact that both Isabelle and Donald T~ each remarried after the divorce further proved that they both believed that the divorce was valid and that they had the right to re-marry and enter into valid marriages. Consequently, there appears to be insufficient evidence to rebut the presumption that Isabelle's second marriage was valid. Accordingly, we believe that the marriage between Isabelle and Richard M~ would stand as valid in the Virginia courts.

Conclusion

It is our opinion that Virginia courts would likely recognize the Mexican divorce as valid. We also believe that Virginia courts would likely find the subsequent marriage between Isabelle and Richard M~ to be valid, and that as a result, Isabelle could be considered the legally surviving spouse of Richard M~. Hence, it appears that Isabelle would be eligible for surviving spouse benefits, including any retroactive benefits and the lump sum death payment, provided that you determine that all the other requirements for these benefits are met.