The Coos Bay, Oregon Field Office has asked whether a divorce granted in the Dominican
Republic, where neither party resided, would be considered valid in the State of Virginia
or the State of California. If the divorce is not valid, the Field Office has asked
whether the claimant, Georgia D~, is estopped from denying the validity of the divorce.
You informed us that claimant, Georgia D~, filed a divorced spouse claim on May 25,
1999, on the account of her first husband, Ralph R. D~ (wage earner). Claimant was
married to the wage earner in 1957 and was divorced from him on September 26, 1970
in California. The validity of this divorce is not in question.
Claimant then married William T. S~ in California on June 9, 1974. In November 1975,
William S~ filed for divorce in the Dominican Republic. At the time of the divorce,
Mr. S~ was a resident of Virginia, and claimant was a resident of California. Mr.
S~ was present in the Dominican Republic at the time of the divorce, claimant was
not, but was represented by proxy. Mr. S~ has since remarried. Claimant did not remarry.
The claimant is entitled to divorced spouse's benefits based on the account of her
first husband, Ralph D~ if: (1) the wage earner is at least 62 years old; (2) she
is the wage earner's divorced wife; (3) she was validly married to the wage earner;
(4) she was married to the wage earner for at least ten years immediately before she
divorced the wage earner; (5) she applies; (6) she is not married; (7) she is 62 or
older; (8) she is not entitled to an old-age or disability benefits based on a primary
insurance amount that is equal to or larger than the full wife's or husband's benefit;
and (9) she has been divorced from the wage earner for a least two years. See 42 U.S.C.A. § 402(b) and 416(d); 20 C.F.R. § 404.331 (1999).
The sole issue here is whether claimant is "not married" for the purposes of obtaining
divorced spouse benefits on the account of Ralph D~, her first husband. See 42 U.S.C.A. § 402(b)(1)(C); 20 C.F.R. § 404.331(c). For the reasons discussed below,
we believe that the claimant could be considered "not married" for the purposes of
entitlement to benefits as the divorced spouse of Ralph D~.
Which State's Law Applies?
The Social Security Act and regulations provide that, in determining family status,
the claimant is the spouse of the wage earner if the courts of the State in which
the wage earner is domiciled at the time the claimant files the application would
find that the claimant and the wage earner are married. See 42 U.S.C.A. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. This requirement applies where
the marital status at issue is that of the claimant and the wage earner. Here, the
marital status of the claimant and the wage earner is not at issue. Instead, we are
evaluating the marital status of the claimant and her second husband, William S~.
In a case analogous to this one, OGC Region V determined that the law of the State
in which a claimant is domiciled at the time she files an application is the law applicable
in determining the validity of a divorce of the claimant and a spouse who is not the
wage earner. See Memorandum from OGC to ARC, Programs, Validity of Dominican Republic Divorce and Application
of Minnesota Law of Estoppel, July 25, 1986; see also Memorandum from OGC Region III to Regional Commissioner Region III, Hugh M~, [SSN],
Validity of Haitian Divorce - Maryland, June 13, 1985.
It is not clear which State's law would be applied here in determining the validity
of the claimant's divorce from William S~. It could be Oregon, where claimant lives,
or it could be California, where the wage earner Ralph D~ lives. In addition, as claimant
and her second husband were not living in Oregon at the time of the divorce, Oregon
courts could apply California law (where claimant lived at the time of the divorce),
or Virginia law (where claimant's second husband lived at the time of the divorce).
Likewise, California courts could apply California law or Virginia law. As it is unclear
which State's law would apply in this case, this opinion will consider the laws of
Oregon, California, and Virginia.
A divorce obtained in the Dominican Republic is invalid in the majority of States
if neither of the parties is domiciled there.
As the Dominican Republic is not a State, a Dominican Republic divorce decree is not
entitled to recognition in the United States by virtue of the Full Faith and Credit
Clause of the United States Constitution (Art. IV, Sec. I). Instead, its recognition
is governed by considerations of comity. Under comity, courts may deny even prima
facie validity to the judgments of foreign countries for policy reasons, despite whatever
allegations of jurisdiction may appear on the face of such foreign judgments. See Montemurro v. Immigration & Naturalization Service, 409 F.2d 832, 832 (9th Cir. 1969). The majority of States refuse to recognize a
foreign divorce, regardless of its validity in the nation awarding it, unless at least
one of the spouses was a good faith domiciliary of the foreign nation at the time
the divorce decree was rendered. See Annotation, Domestic Recognition of Divorce Decree Obtained in a Foreign Country and Attacked
for Lack of Domicile or Jurisdiction of Parties, 13 A.L.R. 3d 1419 (1967). This is
true even if, as here, both parties were present before the Dominican Republic court
in person or by proxy. Id.
Consistent with the majority of States, California, Virginia and Oregon would find
the Dominican Republic divorce invalid. California has specifically held that a divorce
may not be validly granted in a State or country where neither party is domiciled.
See Ryder v. Ryder, 37 P.2d 1069 (Cal. Dist. Ct. App., 3rd Dist. 1934); see also, Memorandum from OGC Region IX to Assistant Regional Commissioner Region IX,
John J~, [SSN~], March 11, 1986 (in California, jurisdiction to grant a divorce rests
upon bona fide domicile; where neither party is domiciled within a State, no valid
divorce may be granted and all proceedings are void).
While Virginia courts have not dealt with this issue specifically, case law indicates
that Virginia courts would follow the majority view. In Howe v. Howe, 18 S.E.2d 294 (Va. 1942), the Supreme Court of Virginia found that an Arkansas divorce
decree was invalid where the husband had not established domicile in Arkansas, because
he had no intention to remain there permanently or indefinitely. Id at 118-119. Howe further found that "jurisdiction is essential" and that a "decree
of divorce by a court not having jurisdiction of both parties and of the subject matter
does not come within the full faith and credit clause of the Federal Constitution
and is entitled to no recognition whatever in the courts of another State or country."
Id at 121. This case remains good law in Virginia. In addition, a Fourth circuit case
indicates that a Virginia
District Court found that a Mexican decree was invalid. See Harrison v. Harrison, 214 F.2d 571 (4th Cir. 1954). Based on this history, if presented with the facts
here, we believe that Virginia courts would likely find the Dominican Republic divorce
decree is invalid.
Likewise, Oregon courts have stressed that domicile is essential to the validity of
a divorce decree, such that at least one of the parties must be domiciled in the State
which granted the decree. See Kelly v. Kelly, 191 P.2d 656, 662 (Or. 1948). Based on the necessity of domicile, Oregon would find
that claimant and William S~'s divorce was invalid, as the Dominican Republic imposes
no requirement of residence on individuals seeking to be divorced there, and as there
is no evidence that William S~ or the claimant were domiciled in the Dominican Republic.
What is the effect of the invalid divorce on the Claimant's application for benefits?
Given that the Dominican Republic divorce decree is invalid in Virginia, California
and Oregon, you asked whether estoppel would apply in this case.
Estoppel has been traditionally used by the courts as a judicial alternative to direct
recognition of a bilateral foreign divorce, like the divorce here. See 13 A.L.R. 3d 1419. Instead of recognizing that the divorce is valid, the court will
determine that a party is estopped from challenging the validity of the divorce when
they participated in it or benefited from it. For example, where one spouse has participated
in a divorce, and later challenges the divorce to inherit from the "ex-spouse" under
State inheritance laws, courts may hold that the spouse may not challenge the divorce
to further his or her interests. See Stephen C. Glassman, The Tangled International Divorce Web: Recognition and Enforcement at Home, 9 Fam.
Advoc. 4 (Spring 1987). Estoppel has been applied to prevent a party to an invalid
divorce from attacking the validity of that divorce in all of the States relevant
to this discussion. See Swint v. Swint, 395 P.2d 114 (Or. 1964); McNeir v. McNeir, 16 S.E. 2d 632 (Va. 1941); Bartsch v. Bartsch, 132 S.E. 2d 416 (Va. 1963); Spellens v. Spellens, 317 P.2d 613 (Ca. 1957).
Under the rules described above, both the claimant and William S~, would be estopped
from challenging the validity of their divorce, because they were participants in
the divorce, the divorce was obtained many years ago in 1975, and William S~ has remarried
in reliance on the divorce. It is important to note, however, that the claimant does
not want to challenge the validity of her divorce from William S~. She argues that
the divorce is valid, so that she may receive benefits on the account of her first
husband Ralph D~.
Even though the claimant and William S~ may not challenge the validity of their Dominican
Republic divorce, this does not mean that the divorce is valid. Further, case law
adopted by SSA as its official interpretation, suggests that SSA may challenge the
validity of an invalid divorce even if the parties are estopped from doing so. See Slessinger v. Sec'y of Health & Human Svcs, 835 F.2d 937 (1st Cir. 1987), SSR 88-15c. In Slessinger, the claimant sought to have SSA recognize a Dominican Republic divorce decree purporting
to end her marriage to her second husband so that she could be considered "not married"
and entitled to mother's benefits on the earnings record of her deceased first husband
under section 202(g)(1) of the Act. See42 U.S.C.A. § 402(g)(1). Applying the law of the State of Rhode Island, SSA refused
to recognize the Dominican Republic divorce decree and denied the claim. The federal
district court and the Court of Appeals for the First Circuit affirmed SSA's decision
and SSA published the opinion as Social Security Ruling (SSR) 88-15c. Under SSR 88-15c,
estoppel was held to be inapplicable to the Secretary, who was not a party to the
divorce or a beneficiary of it. Under this Ruling, SSA may collaterally attack the
validity of a divorce, and find that a claimant remains married.
Considering SSR 88-15c, one might suggest that SSA may be able to challenge the claimant's
Dominican Republic divorce from William S~ and deny her claim for benefits on Ralph
D~'s account, because claimant would be viewed as still married to William S~. While
Slessinger indicates that SSA may challenge an invalid divorce, SSA should first determine whether
under State law as applied to the particular facts of each case, a person who was
not a party to the divorce (such as SSA) may challenge the divorce decree. Notwithstanding
SSR 88-15c, it is our opinion that SSA should not engage in such a challenge here.
Family issues such as marriage and divorce are State law issues and are governed by
equitable considerations. Even in cases where a divorce has been held invalid due
to lack of jurisdiction, the majority of States have held that a divorce will not
be denied recognition where the equities weigh toward divorce. See Howe, 18 S.E.2d at 300. A "balance-the-equities" approach has been applied in a case involving
Social Security benefits, even where the person challenging the divorce decree was
not a party to the divorce and received no benefit from it. See Thompson v. Harris, 504 F.Supp. 653, 655 (D. Mass. 1980) ("[i]t would not be inequitable as a matter
of law to permit . . . [the claimant] to challenge the validity of [her ex-husband's]
Mexican divorce from his first wife"). Even in Slessinger, the court apparently applied equitable principles to determine whether SSA could
challenge a divorce decree under those particular facts in accordance with the relevant
State law in that case. "No . . . principles of estoppel apply to the Secretary. The
Secretary has derived no benefit from the decree that would render it inequitable
for the Secretary to contest the decree. It would be an odd rule that would require
the Secretary to give effect to an otherwise invalid foreign divorce decree (even,
hypothetically, one obtained for the sole purpose of re-establishing an entitlement
to mother's insurance benefits) merely because a participant in the divorce would
be estopped from a collateral challenge." Slessinger, 835 F.2d at 941 (emphasis added).
Here, there are several factors that weigh toward equitable recognition of the divorce
in question: (1) claimant and William S~ obtained the Dominican Republic divorce over
twenty years ago; (2) the divorce was bilateral, meaning that both parties were present
at the proceedings (claimant by proxy) and consented to the divorce; and (3) the claimant's
second husband, William S~, has remarried.
On numerous occasions prior to the promulgation of SSR 88-15c, SSA found parties "not
married" for Social Security purposes, even where, as here, a marriage ended in an
invalid divorce, and both parties to the divorce were estopped from challenging its
validity. These OGC opinions are not inconsistent with the position that SSA will
apply State law and determine whether, under the facts of a particular case, it should
challenge an invalid divorce decree.
This recognition of invalid divorces in some situations has been incorporated into
the POMS. In a different fact situation than here, under POMS GN 00305.180, a claimant who is estopped from denying the validity of a divorce from a wage earner,
is considered the divorced spouse of the wage earner for the purposes of claiming
divorced spouse's or surviving divorced spouse's benefits. See Memorandum from OCG Region VIII to Regional Commissioner, Applicability of Estoppel
Under Montana Law, September 12, 1984; Memorandum from OGC Region I to Assistant Regional
Commissioner, Jennie K. R~, November 28, 1984; Memorandum from OGC Region I to Assistant
Regional Commissioner, Programs, Is the Defendant in an Invalid Dominican Republic
Divorce Estopped from Denying its Validity?, December 16, 1985.
While SSA's challenge of an invalid divorce was upheld in Slessinger, this case is distinguishable. In Slessinger, there was no indication in the opinion that either of the parties to the invalid
foreign divorce had remarried in reliance on that divorce. Further, the time frame
was very different in Slessinger. In that case, the claimant applied for widow's benefits on the account of her first
husband who died on November 29, 1981. She married her second husband on October 22,
1983, and divorced eight months later on August 6, 1984. She applied for benefits
on September 24, 1984. This timeframe suggests that the claimant in Slessinger obtained a divorce from her second husband solely for the purpose of obtaining benefits
on the account of her first husband. Here, the claimant and William S~ obtained their
invalid divorce more than twenty years before she applied for benefits. Thus, while
SSA successfully challenged an invalid divorce decree in Slessinger, that case materially differed from this case and we believe that the facts in this
case raise equitable considerations that appear to be more favorable toward recognition
of the claimant as "not married" than would be the facts in Slessinger.
Therefore, notwithstanding authority providing that SSA may challenge an invalid divorce
decree even where the parties are estopped from doing so, it may not collaterally
attack a divorce in all situations. Equitable considerations weigh in favor of the
claimant here such that an attack would likely not be upheld if challenged. For the
reasons discussed above, we believe that the claimant could be considered "not married"
for the purposes of entitlement to benefits as the divorced spouse of Ralph D~.
LUCILLE G. M~
Regional Chief Counsel, Seattle Region
Assistant Regional Counsel