The NH was domiciled in Oklahoma at the time of her death, therefore, we look to the Oklahoma Law to determine the validity of the NH’s marriage to the Claimant. Oklahoma law presumes the validity of the last marriage, such that earlier marriages are presumed to have ended in divorce or death absent evidence to the contrary. In this case, the NH and the ex- spouse were divorced in September 1984. Based on that evidence the Claimant submitted, we believe the Oklahoma law would recognize that the prior marriage between the NH and the ex-spouse ended in divorce.

The NH and ex-spouse were not married at the time of the NH’s death. The Claimant and the NH did not file for divorce and there is no evidence that counters the presumed validity of the marriage between the NH and the Claimant. The evidence submitted by the Claimant satisfies the marital relationship requirement to qualify as the NH’s widower under the Act.

QUESTIONS PRESENTED

For purposes of V~’s application for widower’s benefits on the number holder L~’s (NH’s) account, you asked whether a Choctaw County, Oklahoma, District Court (District Court) docket entry noting the grant of a decree of divorce terminated the NH’s prior marriage to W~. You also asked whether V~’s later marriage to the NH was valid and whether W~ or V~ was the NH’s widower under Oklahoma law.^[1]

 

Short Answer

We conclude Oklahoma law presumes the validity of the NH’s last marriage to V~. The District Court’s docket entry noting the court granted a decree of divorce in September 1984 terminated the marriage between the NH and W~. While the District Court’s docket entry also notes an Order to Dismiss Case in July 1989, the Court has no further documentation explaining the Order. We conclude the District Court lacked power to issue such an Order on its own almost five years after granting the decree of divorce. Thus, we find insufficient evidence to rebut the presumption of validity of the NH’s marriage to V~. V~ is the NH’s legal widower under Oklahoma law.

Background

The NH died on December XX, 2014. She was domiciled in Oklahoma at the time of her death. On May XX, 2015, V~ filed an application for widower’s benefits on the NH’s account, stating he was married to the NH although they had separated in July 2013.^[2] V~ stated neither he nor the NH filed for divorce.

In developing V~’s widower’s benefits application, agency notes indicated that the agency learned the NH’s death certificate stated she was divorced.^[3] The agency contacted the NH’s mother for clarification. The NH’s mother stated the NH filed a petition for divorce from V~ the District Court. However, the NH’s mother stated the NH did not further pursue the divorce from V~ because she found out that her divorce from an earlier marriage to W~ had never been filed. The NH’s mother suggested the divorce lawyer never filed the divorce because the NH never paid her lawyer.

The agency contacted the District Court’s office for clarification on the NH’s divorce from V~ and from W~. Agency notes show that the District Court clerk’s (clerk) statements to the agency changed over time. Initially, the clerk stated she found a divorce between the NH and V~. Later, the clerk clarified she found only a petition and summons for divorce between the NH and V~, but no entry of a final divorce.^[4] The District Court clerk advised the agency that she could not find the file for the NH’s and W~’s earlier divorce. However, the District Court clerk provided the agency with a copy of its docket sheet showing the NH filed a petition for divorce from W~ in April 1984, and that the Court granted a decree of divorce in September 1984 on grounds of incompatibility following a hearing both the NH and W~ attended. The District Court’s docket sheet indicated almost five years later, in July 1989, that an “Order to Dismiss Case” was filed. The clerk stated she was uncertain what the docket sheet notes meant.

The agency contacted W~, who stated he and the NH were divorced, although he did not have a copy of the divorce decree. W~ stated he never asked the District Court to set aside the divorce, and he denied receiving any notice from the court that the divorce had been set aside. W~ later told the agency he contacted an attorney and showed the attorney the District Court docket sheet entries. W~ stated the attorney advised him under Oklahoma law a divorce can only be set aside within 30 days of entry, and the District Court could not have set aside or dismissed the case almost five years after entering the divorce. Thus, we assume W~’s position is that he is divorced from the NH and was not her legal widower upon her death.

Analysis

1. Entitlement to Widower’s Benefits Under the Social Security Act

A claimant is entitled to widower’s benefits under Title II of the Social Security Act (Act) if, among other things, he is the widower (widower or surviving husband) of an individual who was full insured when she died.^[5] See 42 U.S.C. §§ 402(f), 416(g); 20 C.F.R. § 404.335. For a claimant to establish he is the widower, the claimant bears the burden of proving the requisite marital relationship with the insured at the time she died. See 20 C.F.R §§ 404.335, 404.344, 404.345, 404.346, 404.704, 404.723, 404.725, 404.726, 404.727. The agency will determine whether an applicant is an insured individual’s widower by determining if the courts of the state in which the insured individual was domiciled at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died.^[6] See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Thus, in determining the claimant’s relationship as the insured’s widower, the agency looks to the law of the state where the insured had a permanent home at the time she died. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the individual insured’s true and fixed home or legal domicile. 20 C.F.R. § 404.303. Because the NH was domiciled in Oklahoma at the time she died, we look to Oklahoma law to determine whether the NH and V~ were validly married.

2. Under Oklahoma Law, the Marriage Between the NH and V~ Is Presumed Valid

As noted, your legal opinion request focuses upon whether the NH’s prior marriage with W~ terminated before the NH’s subsequent marriage to V~. Under Oklahoma law, parties entering into a marriage must be single, and a marriage in which any party is still validly married to another is a void marriage. Okla. Stat. Ann. tit. 43, § 3(A); see Whitney v. Whitney, 134 P.2d 357, 359 (Okla. 1942). Thus, it is our understanding that your primary concern is whether the NH’s marriage to V~ was void because she was still validly married to W~.^[7]

We begin our analysis by recognizing that Oklahoma law presumes the validity of the last marriage, such that earlier marriages are presumed to have ended in divorce or death absent evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffield, 357 P.2d 434, 437 (Okla. 1960). The presumption increases in strength with the passage of time, recognition and acknowledgment of the marriage, and the birth of children. See Marcum, 406 P.2d at 973; Norton, 357 P.2d at 437. The presumption of the validity of the latest marriage is strong, but may be rebutted by the person asserting the invalidity of the latest marriage. See Marcum, 406 P.2d at 974; Norton, 357 P.2d at 437. The strength of the evidence needed to rebut the presumption depends on the equitable strength of the evidence establishing the last marriage. See Smith v. Barnhart, 2003 WL 893578 at *4 (10th Cir. 2003) (unpublished) (“Oklahoma courts have been somewhat inconsistent in assessing the burden of proof against the party attacking the marriage,” but “[t]he consistent rational underlying these different applications, however, is that the presumption is rebuttable, and the strength of the rebuttal evidence must mirror the apparent strength of the validity of the marriage.”). The evidence required to rebut the presumption may be as low as “some, competent evidence sufficient to eliminate the presumption” (see Puntka v. Puntka, 50 P.2d 1092, 1093 (Okla. 1935)) and as high as “clear, strong, and unequivocal” evidence (see Norton, 357 P.2d at 439). See id.

As noted, there is little evidence addressing the NH’s latest marriage to V~ from which we could analyze the equitable strength of the evidence establishing the marriage. We do not know the length of the marriage, whether any children were born of the marriage, or whether the community generally recognized the marriage.^[8] Nevertheless, we can provide an opinion in this case without further development. If V~ was the last individual married to the NH, there must, at a minimum, be some competent evidence to counter the presumption of that marriage’s validity, such as evidence that the NH and W~ never divorced, which would make the NH’s marriage to V~ void. Therefore, we next look to whether the NH and W~ validly divorced.

3. Under Oklahoma Law, a Divorce Decree Is Valid When Pronounced

We first consider whether the District Court docket sheet establishes that the NH and W~ were divorced. Under Oklahoma law, a parties’ divorce is final on the date the divorce is pronounced. See Alexander v. Alexander, 357 P.3d 481, 485 (Okla. 2015) (“The dissolution of the marriage was effective when pronounced by the trial court, but would not have been appealable unless it had been properly filed.”); Bryan v. Bryan, 221 P.3d 146, 150 (Okla. Civ. App. 2009) (“the parties’ divorce was valid and final” on the “date the trial court announced its ruling and entered its minute order”); Okla. Stat. Ann. tit. 43, § 127 (time when judgments in divorce actions become final; effect of appeal); Okla. Stat. Ann. tit. 12, § 696.2(E) (“A judgment, decree or appealable order, whether interlocutory or final, shall not be enforceable in whole or in part unless or until it is signed by the court and filed; except that the adjudication of any issue shall be enforceable when pronounced by the court in the following actions,” including “divorce”). Further, a divorce judgment is rendered when pronounced, and the failure to enter a written memorial of the judgment does not invalidate the judgment. See Pellow v. Pellow, 714 P.2d 593, 595 (Okla. 1986); see also Alexander, 357 P.3d at 484 (“This Court has long held that ‘entry of the written memorial upon the court’s journal is not essential to the validity of the judgment, and failure to properly file a journal entry of judgment does not render judgment void.’”) (citing Pellow, 714 P.2d at 595). In Pellow, the Oklahoma Supreme Court held that a divorce was granted on the date the district court entered a minute order in the docket sheet stating, “divorce granted to both parties all as per journal entry.” Id. at 595, 597.

Here, the District Court’s docket sheet shows the NH filed a petition for divorce from W~ in April 1984, and the District Court granted a decree of divorce in September 1984 following a hearing both the NH and W~ attended. The docket sheet states, “Decree of Divorce Granted on Grounds of Incompatibility.” Because the District Court was unable to locate the case file, we do not know whether any other written memorial of the divorce decree existed. However, the minute order on the docket is sufficient evidence to establish that the NH and W~ were divorced in September 1984, with no other written memorial required. See Pellow, 714 P.2d at 595, 597. As noted, we find it further significant that W~’s position is that he validly divorced the NH.

The agency should accept the District Court’s minute order as evidence establishing the divorce between the NH and W~. Agency policy states that a state trial court decision does not bind the Commissioner when the agency is not a party. See Social Security Ruling (SSR) 83-37C, 1983 WL 31272 (adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973)). However, the Commissioner must still recognize a state court adjudication where all of the following prerequisites (prongs) are found: (1) a state court of competent jurisdiction has determined an issue in a claim for Social Security benefits; (2) parties with opposing interests genuinely contested the issue before the state court; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Id. Admittedly, there is very little evidence addressing the four prongs under Gray, but it appears all four prongs are sufficiently satisfied in this case such that the agency should recognize the decree of divorce.

First, a district court in Oklahoma has subject-matter jurisdiction to hear divorce case (Okla. Stat. Ann. tit. 43, § 101), and the decree of divorce between the NH and W~ impacts V~’s Social Security benefit eligibility as the NH’s legal widower. Second, both the NH and W~ appeared in the case as opposing parties. Third, divorce proceedings are in the general category of domestic relations law. See Okla. Stat. Ann. tit. 43, §§ 101-140; see also Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun concurring) (“‘first’ or ‘core,’ category [of domestic relations] involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity”). Fourth, incompatibility is a proper grounds for divorce under Oklahoma law. See Okla. Stat. Ann. tit. 43, § 101. Thus, applying Gray, the agency should recognize the District Court’s September 1984 divorce decree between the NH and W~.

4. Under Oklahoma Law, the District Court Did Not Have Power to Dismiss the Divorce

Next, we consider whether the District Court’s notation in July 1989, “File Order to Dismiss Case” properly set aside the divorce decree. Under Oklahoma law, a divorce decree may be appealed, vacated, or set aside. See Okla. Stat. Ann. tit. 12, §§ 990A, 1031; Okla. Stat. Ann. tit. 43, § 133. Final judgments from a district court may be appealed to the Oklahoma Supreme Court, but any such appeal must be commenced within thirty days from the date of the judgment.^[9] Okla. Stat. Ann. tit. 12, §§ 952(b), 990A. A party may also file a petition in the district court to vacate a divorce decree. Okla. Stat. Ann. tit. 12, § 1031. Generally, the petition must be filed within thirty days of the judgment. Okla. Stat. Ann. tit. 12, § 1031.1. If more than thirty days has passed, the party must file a petition, verified by affidavit, setting forth the judgment, the grounds to vacate or modify it, and the defenses to the action. Okla. Stat. Ann. tit. 12, § 1033. The party must then serve a summons as in the initial commencement of a civil action. Id. Finally, a district court can set aside its divorce decree at any time. Okla. Stat. Ann. tit. 43, § 133. However, the district court may only set aside its divorce decree on petition of both parties, signed by both parties, asking the court to set aside the divorce. Id. Further, the parties must prove to the court that neither one married a third-party during the time since the court issued the decree of divorce. Id.

The District Court’s docket sheet does not support any of these means of appealing, vacating, or setting aside the divorce decree. Indeed, the docket sheet does not indicate that the NH or W~ took any steps to appeal the divorce decree, such as individually petitioning the District Court to vacate the divorce decree, or jointly petitioning the District Court to set aside the divorce decree. There are no docket entries at all between the September 1984 docket entry granting the divorce decree and the July 1989 docket entry purporting to dismiss the case. The evidence provided does not explain the effects of the court’s apparent order entered five years after the divorce decree. Not even the District Court clerk was able to explain what this final docket sheet entry meant. However, W~ stated he never had the divorce set aside and never received any notice from the District Court that the divorce was set aside. Although the NH’s mother seems to suggest the divorce was set aside because the NH did not pay her attorney,^[10] we find no legal authority that would grant a district court the power to dismiss on its own a decree of divorce without notice to the parties. Neither the NH nor W~ suggested she or he filed a petition to set aside the divorce decree. Thus, we do not believe that the docket entry of an Order to Dismiss the Case made in 1989 properly set aside the divorce decree the District Court previously entered five years before, in 1984. Even if we considered the District Court’s docket entry as evidence the court set aside the divorce decree, we would not be required to recognize the Court’s adjudication because under the fourth Gray prong it is inconsistent with Oklahoma law, as discussed above.

For these reasons, we conclude the District Court did not validly dismiss the divorce decree. Under Oklahoma law, the NH and W~ were divorced in September 1984, and no evidence counters the presumed validity of the marriage between the NH and V~.^[11] Because there is no evidence that the marriage between the NH and V~ ended in divorce, V~ qualifies as the NH’s widower.

Conclusion

We believe Oklahoma law would recognize that the prior marriage between the NH and W~ ended in divorce. Therefore, the NH’s subsequent marriage to V~ is not void on the basis that she was married to W~ at the time of her marriage to V~, which we understand to be the primary focus of this legal opinion request. Under Oklahoma law, there is insufficient evidence to rebut the presumption of the validity of the marriage between the NH and V~. Consequently, assuming the agency has sufficient evidence as to V~’s marriage with the NH, V~ satisfies the marital relationship requirement to qualify as the NH’s widower under the Act. See 42 U.S.C. § 416(f), (g), (h)(1)(A)(i); 20 C.F.R. §§ 404.335, 404.345; see also 20 C.F.R. §§ 404.723 (if you apply for widower’s benefits, we will ask you for evidence of the marriage and where and when it took place), 404.725 (evidence of a valid ceremonial marriage), 404.726 (evidence of a valid common law marriage).

Michael McGaughran

Regional Chief Counsel

By: James D. Sides

Assistant Regional Counsel

Oklahoma applies the presumption of the validity of the latest in a series of marriages, such that earlier marriages are presumed to have ended in divorce absent evidence to the contrary.  Under the presumption of the validity of the latest marriage, Ms. B~’s marriage to Mr. C~ would be presumed valid. Evidence presented does not overcome that presumption. There is also no evidence to show that Ms. B~’s marriage to Mr. C~ was validly dissolved. Ms. B~ never obtained a divorce from Mr. C~. The divorce Mr. C~ obtained from Ms. B~ in Mexico would not be considered valid because proper service was not made upon Ms. B~ and neither Ms. B~ nor Mr. C~ were residents of Mexico at the time of the divorce. At the time Ms. B~ applied for surviving divorced widow’s benefits, she was legally married to Mr. C~ and thus she was not entitled to benefits on Mr. M~’s account.

You have requested an opinion regarding whether Ms. B~, who has applied for surviving divorced widow’s benefits on the account of deceased number holder (DNH) M~, would be considered C~’s spouse. You believe that if Ms. B~ is not Mr. C~’s spouse, she is entitled to benefits as a surviving divorced widow on the DNH’s account. You also request an opinion on whether Ms. B~ would be estopped from asserting a Mexican divorce from Mr. C~ that, in Mr. C~’s application for retirement benefits filed on August XX, 2000, Mr. C~ alleged he obtained in 1979. After reviewing the facts and relevant law, it is our opinion that Ms. B~ is Mr. C~’s legal spouse and she would not be entitled to surviving divorced widow’s benefits on the DNH’s account. Moreover, whether Ms. B~ would be estopped from relying on the divorce Mr. C~ allegedly obtained from her in Mexico in 1979 is not at issue as Ms. B~ is not relying on such divorce to establish her claim, and, even if she were, such divorce would not be considered valid in any applicable jurisdiction.

Ms. B~ filed for surviving divorced widow’s benefits on the DNH’s account on January XX, 2010. The DNH died in Oklahoma in November 2009. As we understand the applicable facts based upon the documentation provided to us, Ms. B~, the applicant, married the DNH in May 1951 (M~/B~ marriage), and was divorced from the DNH in June 1962. Mr. M~ subsequently remarried and remained married to R~ until the time of his death. Mr. C~ married Ms. Y~ (Y.)~ in 1959 (C~/Y~ marriage). Mr. C~ alleged he obtained a divorce from Ms. Y~ in Texas in 1963. Ms. B~ and Mr. C~ married in August 1968 in Pacific Grove, California (C~/B~ marriage). Ms. B~ asserts that at the time she married Mr. C~ she believed that Mr. C~ had obtained a valid divorce from Ms. Y~ in Texas in 1963. However, Ms. B~ claims in her current application for benefits, that she learned in 1979 or 1980 that Mr. C~ had obtained his divorce from Ms. Y~ in Mexico. Upon learning such, Ms. B~ consulted with an attorney from California, and the attorney informed Ms. B~ that the divorce that Mr. C~ obtained from Ms. Y~ in Mexico would not be considered valid in California, and that Ms. B~ could walk away from her marriage to Mr. C~. The Waco and Odessa, Texas Social Security Administration (SSA) field offices conducted a search of the county court records for McLennan and Ector Counties, but they found no documentation of the divorce that Mr. C~ alleged he obtained from Ms. Y~ in Texas in 1963. After Ms. B~ separated from Mr. C~, he obtained a divorce from Ms. B~ in Mexico in January 1979. Mr. C~ subsequently married J~ (C~/J~ marriage) in Texas in 1983. Mr. C~, still married to Ms. J~, currently resides in Texas and is receiving Title II retirement benefits.

The DNH received Title II retirement benefits from November 1992 until his death in November 2009. At the time of his death, the DNH was domiciled in Oklahoma. The DNH’s surviving widow, R~, is currently receiving benefits on the DNH’s account.

In reaching our conclusions, we conducted a two-step analysis. First, we analyzed whether the C~/B~ was a valid marriage under California law, where the marriage took place. Under California law, the presumption is that the marriage was valid and it is inferred that Mr. C~ previous marriage to Ms. Y~ was terminated by a valid divorce. There was not sufficient evidence presented to us to overcome the presumption that the C~/B~ marriage was valid, as there is only a claim by Ms. B~ that Mr. C~ obtained his divorce from Ms. Y~ in Mexico and an incomplete search of Texas county divorce records to contradict Mr. C~ claim that he obtained a valid divorce from Ms. Y~ in Texas. Having determined that the C~/B~ marriage would be presumed valid, the second step of our analysis was to determine if the presumption of the validity of the C~/K~ marriage would hold. Since Ms. B~ acknowledges that she never obtained a divorce from Mr. C~, and Mr. C~ claimed he obtained a divorce from Ms. B~ in Mexico, where neither party resided and of which Ms. B~ never received notice, the presumption of the validity of the C~/K~ marriage fails. Thus, we conclude that Ms. B~ was validly married to Mr. C~, and there never was a valid dissolution of the C~/ B~ marriage. Since Ms. B~ was married to Mr. C~ at the time of her application, she is not entitled to surviving divorced widow’s benefits on the DNH’s account.

As you know, the Social Security Act (the Act) provides that widow’s insurance benefits are payable to the surviving divorced wife of a wage earner who died fully insured if the surviving divorced wife has filed an application for benefits, has attained the age of sixty, and is not married. See 42 U.S.C. § 404(e); 20 C.F.R. § 404.336 (2009). Thus, in order for Ms. B~ to be eligible for surviving divorced widow’s benefits on the DNH’s account, she must not have been married to Mr. C~ at the time she applied for benefits. In determining marital status, the Act provides that SSA will look to the laws of the State where the fully insured individual was domiciled at the time of the filing of the application for benefits, or, if deceased, where the fully insured individual was domiciled at the time of death. See 42 U.S.C. § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345 (2009). As the DNH resided in Oklahoma at the time of his death, we look to Oklahoma law to determine whether Ms. B~ was married to Mr. C~ at the time she applied for benefits.

Oklahoma applies the presumption of the validity of the latest in a series of marriages, such that earlier marriages are presumed to have ended in divorce absent evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffeld, 357 P.2d 434, 437 (Okla. 1960). If the C~/K~ marriage is presumed valid, the C~/B~ marriage would be presumed to have ended in divorce and Ms. B~ would be entitled to surviving divorced widow’s benefits on the DNH’s account because she would not have been married at the time of her application for benefits. However, before reaching the question of whether C~/J~ marriage in 1983 is presumed valid, and thus the C~/B~ marriage is presumed to have been dissolved by a divorce, we believe that we must first look at whether the C~/J~ marriage in 1968 was bigamous and therefore void. If the C~/B~ marriage was bigamous because Mr. C~ prior marriage to Ms. Y~ had not been terminated, it would be void and there would be no need to address the validity of the C~/J~ marriage, as Ms. B~ would never have been validly married to Mr. C~. In making such determination, Oklahoma law directs us to look to California law. The C~/B~ marriage took place in California in 1968, and therefore Oklahoma courts would apply California law in determining the validity of the C~/B~ marriage. See Lopez v. Bonner, 439 P.2d 687, 688 (Okla. 1967) (the validity of a marriage will be determined by California law when the parties were residents of California at all times pertinent to the validity of the alleged marriage); cf. also Red Eagle v. Cannon, 208 P.2d 557, 561 (Okla. 1949) (the validity of a common law marriage must be determined by the laws of the state where the parties resided at the time of the alleged marriage).^[12]

California statutory law provides that “[A] subsequent marriage contracted by a person during the life of a former husband or wife, with a person other than the former husband or wife, is illegal and void from the beginning” unless the former marriage has been dissolved or adjudged a nullity, or the prior spouse is dead or has been missing for a period of five successive years. Cal. Fam. Code § 2201(a) (2010). However, California law, as does Oklahoma law, presumes the latest marriage is valid. As the California Supreme Court stated in In re Smith’s Estate, 201 P.2d 539, 540 (Cal. 1949), “[I]t is well established that when a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage, and the burden is upon the party attacking the validity of the second marriage to prove that the first marriage had not been dissolved by the death of a spouse or by divorce or had not been annulled at the time of the second marriage.” The presumption that the second marriage is valid is rebuttable, and the burden to rebut the presumption “is sustained if the evidence, in light of all reasonable inferences therefrom, shows that the first marriage was not so dissolved or annulled.” Id. “The question must be determined, like any other question of fact, upon a consideration of the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom.” Id. Thus, in this case we must determine if the presumption of the validity of the C~/B~ marriage is rebutted by evidence that there was not a valid dissolution of the C~/Y~ marriage.

The documentation presented to us shows that Mr. C~ married Ms. Y~ in 1959 in Odessa, Texas. Mr. C~ asserted in his 2000 application for retirement benefits that he divorced Ms. Y~ in Texas in 1963. However, in contrast to Mr. C~ claim, Ms. B~ reported in her January 2010 application for surviving divorced widow’s benefits that she left Mr. C~ in 1979 or 1980 when she learned that Mr. C~ had obtained an invalid divorce from Ms. Y~ in Mexico. If Mr. C~ did not obtain a valid divorce from Ms. Y~, then under California law Mr. C~ marriage to Ms. B~ would have been bigamous and thus void. In such case, Ms. B~ would have never been legally married to Mr. C~ and she would be entitled to surviving divorced widow’s benefits on the DNH’s account. However, before we can address whether there is sufficient evidence to establish that the C~/B~ marriage was bigamous and void because there was no valid dissolution of the C~/Y~ marriage, we must first consider whether Ms. B~ would be estopped from asserting the invalidity of the C~/Y~ divorce that Ms. B~ alleged Mr. C~ obtained in Mexico. California courts have used estoppel to validate a second marriage.

California courts usually apply estoppel when the party being estopped from having a subsequent marriage declared invalid had previously procured a valid divorce, or relied on the validity of a previous divorce, to remarry. Estate of Atherley, 44 Cal.App.3d. 758, 764 (Cal.Ct.App. 1975). However, estoppel “applies only to prevent a person from asserting a right where, because of his conduct, silence, or omission, it would be unconscionable to allow him to do so.” Id. In the case of Ms. B~, based upon the facts presented to us, we believe it would not be “unconscionable” to allow Ms. B~ to assert that the Mexican C~/Y~ divorce was invalid. At the time of the C~/B~ marriage, Ms. B~ was under the belief that Mr. C~ had obtained a valid divorce from Ms. Y~ in Texas in 1963. Upon learning that Mr. C~ had divorced Ms. Y~ in Mexico, Ms. B~ consulted an attorney from California. The attorney advised Ms. B~ that California would not recognize the C~/ Y~ divorce, that she could simply walk away from her marriage to Mr. C~, and that she could change her last name back from C~ to B~. Ms. B~ did in fact walk away from her marriage to Mr. C~ soon after learning of the allegedly invalid divorce, and lived independently by her own means. It can be inferred, as in the case of Estate of Atherley, that but for her attorney’s advice, Ms. B~ would have done more and would have obtained a divorce from Mr. C~. See Id. at 765. Thus, there has been no conduct, silence, or omission by Ms. B~ that would make it “unconscionable” for her to assert the invalidity of the C~/Y~ divorce, and we believe that Ms. B~ would not be estopped from asserting the invalidity of such divorce. ^[13]

Because we find that estoppel does not bar Ms. B~ from asserting the invalidity of the C~/Y~ divorce, we next consider whether the C~/B~ marriage was valid. If there were no valid dissolution of the C~/Y~ marriage, then, as we point out above, Ms. B~’s marriage to Mr. C~ would have been bigamous and void under California law. However, based upon the evidence presented to us, when we consider “the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom,” Ms. B~ has failed to meet her burden of proving that the C~/Y~ marriage did not end by a valid divorce. The only evidence we have that Mr. C~ did not obtain a valid divorce from Ms. Y~ is an incomplete search of Texas divorce records and Ms. B~’s belief that Mr. C~ obtained his divorce from Ms. Y~ in Mexico. ^[14] On the other hand, Mr. C~ asserted to SSA in his application for Title II retirement benefits that he divorced Ms. Y~ in Texas in 1963. We have no evidence that Mr. C~ and Ms. Y~ were not residents of Texas at the time of the divorce, or that Ms. Y~ did not receive proper notice of the divorce. Since Ms. B~ failed to meet her burden of proving that the C~/Y~ divorce was invalid, the C~/B~ marriage would be presumed to be valid under California law.

Presuming the C~/B~ marriage to be valid under California law, we next determine if the documentation presented to us would rebut the presumption under Oklahoma law that Mr. C~ subsequent marriage to Ms. K~ is valid. If the presumption under Oklahoma law that the C~/K~ marriage is valid is not rebutted, Ms. B~ would be entitled to surviving divorced widow’s benefits on the DNH’s account. Although the presumption that the latest marriage is valid is strong and the presumption increases with the passage of time, the presumption may be rebutted. Norton v. Coffeld, 357 P.2d at 437. Oklahoma courts have been somewhat inconsistent in describing the required strength of the rebuttal evidence. Courts have described the necessary rebuttal evidence as “some, competent evidence sufficient to eliminate the presumption.” Puntka v. Puntka, 50 P.2d 1092, 1093 (Okla. 1935). Courts have also described the evidence standard as “clear, strong, and unequivocal,” as “such evidence as, in the absence of all counter evidence, affords reasonable grounds for presuming the allegation true,” and as “clear, cogent, and convincing.” See Norton, 357 P.2d at 439; Marcum, 406 P.2d at 974. The party attacking the validity of a later marriage “is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true, and when this is done the onus probandi (burden of proof) will be thrown on his adversary.” Brokeshoulder v. Brokeshoulder, 204 P. 284, 287 (Okla. 1922). In an unpublished 2003 opinion, the United States Court of Appeals for the Tenth Circuit discussed the inconsistent descriptions of the burden. The Tenth Circuit stated that the consistent rationale underlying the different descriptions is that the presumption is rebuttable and the strength of the rebuttal evidence “must mirror the apparent strength of the validity of the marriage” and “depends upon the length of time that the attacked marriage has continued, whether a successful attack will in effect bring about an adjudication that children of the marriage under attack are illegitimate, and other facts.” See Smith v. Barnhart, 57 Fed. Appx. 406, 410 (10th Cir. 2003) (unpublished), citing Puntka, 50 P.2d at 1093 and Norton, 357 P.2d at 439. Thus, we believe that the Oklahoma courts would apply a balancing test to determine the validity of the C~/K~ marriage.

The facts and documentation presented to us in this case would not weigh in favor of preserving the presumption that the latest marriage of Mr. C~ to Ms. K~ was valid. Although Mr. C~ has been married to his current wife, Ms. K~, for approximately 27 years, the documentation presented to us indicates that a valid divorce never terminated the C~/B~ marriage of eleven years. Ms. B~ has maintained that she left Mr. C~ in 1979 or 1980 after she learned that Mr. C~ had obtained a divorce from his previous wife in Mexico. Ms. B~ did not obtain a divorce from Mr. C~ because an attorney informed her that California would not recognize the divorce Mr. C~ obtained from his previous wife in Mexico, and that she could “walk away” from her marriage to Mr. C~. In his application for retirement benefits filed on August XX, 2000, Mr. C~ reported that he obtained a divorce from Ms. B~ in Mexico in 1979. Ms. B~, however, never had notice of the divorce proceedings. Moreover, at the time Mr. C~ allegedly obtained a divorce from Ms. B~ in Mexico, Ms. B~ was apparently residing in Arizona and Mr. C~ was apparently residing in Texas. Neither Texas, nor Arizona, would recognize a divorce obtained in Mexico where neither of the parties resided at the time of the divorce and one of the parties, Ms. B~, had no notice of the proceedings. See Risch v. Risch, 395 S.W.2d 709, 712 (Tex. Civ. App. 1965) (Mexican divorce obtained by husband without notice of any kind to wife was void); In Re Nolan’s Estate, 108 P.2d 388, 390 (Ariz. 1940) (when neither the matrimonial domicile nor the domicile of defendant is in jurisdiction granting divorce, and there is neither personal service upon defendant within the jurisdiction, nor an appearance by him, and it appears plaintiff has been guilty of fraudulent actions in securing the divorce, Arizona will not recognize it as valid).^[15] We believe that the facts weigh in favor of rebutting the presumption that Mr. C~ latest marriage is valid because there was no valid dissolution of the C~/B~ marriage. Therefore, we believe that Ms. B~ was legally married to Mr. C~ at the time of her application for benefits, and that she is not entitled to benefits on the DNH’s record.

In response to your question whether Ms. B~ would be estopped from relying upon the divorce that Mr. C~ asserted he obtained in Mexico from her in 1979, we do not believe that estoppel is applicable. The justification for estoppel in the case of a divorce arises from the theory that it would not comport with the principles of justice and fair dealing to allow a party to stand upon the decree and accept its benefits for some purposes, such as remarriage and the termination of their previous marital obligations, and later to be heard to take the inconsistent position that for other purposes the decree is a nullity. Miles v. Jones, 173 P.2d 949, 952 (Okla. 1946); see also 28 Am.Jur.2d Estoppel and Waiver § 77 (2010) (one who procures or gives consent to a judgment or decree, even though it is void as beyond the power of the court to pronounce, is estopped to question its validity, at least where he has obtained a benefit from the act of the court). Ms. B~ did not participate in any manner in acquiring the divorce in Mexico, and she has placed no reliance upon the divorce or obtained any benefit from it. Ms. B~ has not even relied upon the divorce obtained in Mexico by Mr. C~ to assert her marriage to Mr. C~ was terminated. Rather, Ms. B~’s contention is that Mr. C~ marriage to her was bigamous and therefore void. As such, we do not believe that estoppel is at issue with regard to the divorce Mr. C~ reportedly obtained in Mexico to terminate his marriage to Ms. B~. Moreover, as pointed out above, the divorce Mr. C~ obtained from Ms. B~ in Mexico would not be considered valid by any applicable jurisdiction.

In summary, our analysis of whether Ms. B~ is entitled to surviving divorced widow’s benefits on the DNH’s account was a two-step analysis. First, we had to determine if the C~/B~ marriage was a valid marriage under California law. The presumption under California law is that the latest marriage is valid. As such, Ms. B~’s marriage to Mr. C~ in 1968 would be presumed valid, and the burden of proving the invalidity of such marriage is on the party attacking it. The evidence presented by Ms. B~ does not meet her burden of overcoming the presumption that her marriage to Mr. C~ was valid because she has failed to prove that Mr. C~ marriage to Ms. Y~ was not ended by a valid divorce. The only evidence presented to us that there was not a valid dissolution of the C~/Y~ marriage is Ms. B~’s assertion that Mr. C~ obtained his divorce from Ms. Y~ in Mexico. However, Mr. C~ asserted in his application for retirement benefits that he obtained a divorce from Ms. Y~ in Texas in 1963. There has not been a complete search of all Texas county divorce records to determine the truth of Mr. C~ assertion that his divorce from Ms. Y~ was obtained in Texas. Thus, there is not sufficient evidence to disprove that the C~/Y~ marriage ended by a valid divorce, and therefore the presumption stands that the C~/B~ marriage was valid.

Second, we had to determine if the presumption of the validity of the second marriage under Oklahoma law would hold as to the C~/K~ marriage in light of the validity of the C~/B~ marriage. If the C~/K~ marriage is presumed valid, then it is presumed under Oklahoma law that the C~/B~ marriage ended by a valid divorce. However, the evidence presented to us shows that there was not a valid dissolution of the C~/B~ marriage, and therefore the presumption that the C~/K~ marriage is valid fails. Ms. B~ never obtained a divorce from Mr. C~, and the divorce Mr. C~ obtained from Ms. B~ in Mexico would not be considered valid because proper service was not made upon Ms. B~, and neither Ms. B~ nor Mr. C~ were domiciled in Mexico at the time of the divorce. Since there was not a valid dissolution of the C~/B~ marriage, it is our opinion that at the time Ms. B~ applied for surviving divorced widow’s benefits she was legally married to Mr. C~ and thus she is not entitled to benefits on the DNH’s account.

Michael M~

Regional Chief Counsel

By: ___________________________

Martin W. L~

Assistant Regional Counsel

Under Texas law, there is a strong statutory presumption of the validity of the last marriage. The claimant for spouse's benefits has not carried her burden of rebutting the presumption because the search of records is incomplete. Also, the length of time that the claimant and NH have been married to their current spouses increases the strength of the presumption of the validity of the most recent marriage. Moreover, the doctrine of laches would be a factor under Texas law, in finding the claimant estopped from asserting that she continues to be married to the NH. Therefore, she is not entitled to spouse's benefits on the NH's record. This analysis is based on Texas law, but the same conclusion would be reached under Oklahoma law.

You have requested an opinion regarding whether P~ can be considered the wife of wage earner R~, Jr. (wage earner). First, there is an issue as to whether the facts establish that P~ is the wage earner's spouse. Secondly, there is an issue as to whether P~'s subsequent marriages to D~ and A~ preclude her from establishing that she is the wage earner's spouse. This is a case involving numerous successive marital relationships. P~ contends that there was never a final divorce between her and the wage earner, and therefore they are still married. P~ states that although she successively married D~ and A~ in good faith, she later learned in 1997 that her marriage to the wage earner might not have lawfully ended. Thus, she now contends that she is entitled to wife's insurance benefits under 42 U.S.C. § 402(b), based on the wage earner's Social Security record.

After reviewing the facts and relevant law, it is our opinion that P~ is not entitled to spouse's benefits based on her two past marriages to the wage earner. This conclusion is based on several factors, including state law presumptions of the validity of the most recent marriage, estoppel, and laches.

Given the complex marital histories of the parties, a chronology is provided, although there is conflicting information in some of the documents:

1. P~ reported to the Social Security Administration (Agency) that a September XX, 1959, marriage to D~ ended in a November XX, 1966, divorce.

2. R~, Jr., was divorced from D2~ on March XX, 1967.

3. P~ and wage earner R~, Jr., were married on April XX, 1967, in South Carolina.

4. On September XX, 1974, R~, Jr., was divorced from E~ (North Carolina).

5. A North Carolina application, license and certificate of marriage indicates that P~ and R~ were married again on December XX, 1974. Both specified that this was a second marriage. P~ indicated that this was her second marriage and her first marriage had ended in divorce in November 1966. R~ indicated that this was his second marriage and his last marriage had ended in divorce in July 1974.

6. A 2002 affidavit from an attorney, on behalf of P~, states that there was a dissolution of marriage case (No. 78-17892) between P~ and R~, in Clayton County, Georgia, and the case never went to final judgment and was dismissed for lack of prosecution. An October 1978 order was dismissed for want of prosecution in May 1980. Although the document is not entirely legible, it appears to relate to a restraining order.

7. A North Carolina application, license and certificate of marriage indicates that P~ married D~ on September XX, 1979. According to the signed license, this was only P~'s second marriage, and her first marriage had ended in divorce in November 1966. A July XX, 1980, North Carolina judgment dissolved this marriage. The judgment indicated that the defendant (P~) had another living husband (R~) whom she married on April XX, 1967, and no divorce had been granted.

8. R~, Jr., married E~, in Texas, on April XX, 1980.

9. There was a July 1980 Rutherford County, North Carolina, Judgment of Dismissal due to the failure of the parties to appear. P~ was the plaintiff, and R~ was the defendant. The document is not legible.

10. P~ states that she married A~ in Charlotte, North Carolina, on July XX, 1985, and she is still married to him. M~ reported to the Agency in May 2002, that she had been separated from A~ for two to three years, that she had moved to Florida in December 2001, and that A~ came to Florida later for medical treatment because he was still covered under her health insurance.

As indicated, this is an application for spouse's benefits under 42 U.S.C. § 402(b). The Social Security Act directs that the Social Security Administration (Agency) look to the law of the insured party's domicile at the time that the applicant applies for benefits. See Social Security Act § 216(h)(1)(A)(i) (42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345 (2003). Section 416(h)(1)(A)(i) provides:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Thus, a party's status as the insured party's spouse is decided according to the laws of the state where the insured had a permanent home when the applicant applied for spouse's benefits. See also 20 C.F.R. § 404.345. If the applicant and the insured were validly married under the state's law at the time the applicant applied for spouse's benefits, then the relationship requirement will be met. See id. On November XX, 2001, P~ applied for spouse's benefits, based on the earnings of the wage earner. The claim was denied based on estoppel because P~ had remarried. The wage earner was contacted on November XX, 2001. He was still living in Texas at that time. Accordingly, Texas law controls with respect to the November 2001 application. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. P~ applied again on May 10, 2002. Both the wage earner and his current wife E~ reported a change of address to Beggs, Oklahoma on July XX, 2002. The wage earner currently resides in Oklahoma. Assuming that the wage earner was domiciled in Texas at the time of P~'s applications, Texas law would control. If the wage earner's permanent home was in Oklahoma when an application was filed, Oklahoma law would control. We need not resolve this issue because, as will be shown, the outcome will be the same in either event. We will analyze the law of both states.

Texas Law

Presumption of Validity of the Last Marriage

As outlined above, this case involves a significant number of marriages. There are five key marriages: the two marriages between the wage earner and P~, the wage earner's 1980 marriage in Texas to E~, P~'s 1979 marriage to D~, and P~'s 1985 marriage to A~.

It is the policy of the State of Texas to uphold each marriage against claims of invalidity unless strong reasons exist for holding it void or voidable by annulment. Tex. Fam. Code Ann. § 1.101 (Vernon 2001).^[16] The generally accepted view is that a second marriage will be presumed to be valid, and such presumption is stronger than and overcomes the presumption of continuance of the prior marriage. Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. App.-Dallas 1964, writ ref. n.r.e). Under Texas law, there is a statutory presumption of the validity of the last marriage. Section 1.102 of the Texas Family Code provides:

When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves its validity.

See also In re Estate of Loveless, 64 S.W.3d 564, 573 (Tex. App.-Texarkana 2001). The presumption of the validity of the most recent marriage is one of the strongest, if not the strongest, known to law and the strength of the presumption increases with the lapse of time. Id. at 574 (citing Texas Employers' Ins. Ass'n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955)).

The party attacking the validity of the most recent marriage must introduce sufficient evidence, standing alone to negate the dissolution of the previous marriage. Loveless, 64 S.W.3d at 574 (citing Wood v. Paulus, 524 S.W.2d 749, 758 (Tex. App.-Corpus Christi 1975, writ ref'd n.r.e.)). Thus, P~ has the burden of proving the continued validity of her marriage to the wage earner. Moreover, in this case there are two current marriages that are presumed to be valid: P~'s 1985 marriage to A~ and the wage earner's 1980 marriage in Texas to E~. Also, the length of both of these marriages, each lasting over seventeen years, increases the strength of the presumption of their validity. See Loveless, 64 S.W.3d at 574.

P~ has not carried her burden of proof. A 1978 civil action between the wage earner and P~, in Clayton County, Georgia, was dismissed for want of prosecution in May 1980. An affidavit by an attorney, on behalf of P~, indicates that this was a dissolution of marriage case that never went to final judgment. There was a July 1980 Rutherford County, North Carolina, Judgment of Dismissal for failure to appear in a case in which it appears that P~ was the plaintiff and the wage earner was the defendant. These two dismissals, of course, do not establish that there was a final divorce between P~ and the wage earner. However, the evidence also does not establish that P~ or the wage earner never obtained a divorce. See Wood, 524 S.W.2d at 758 (although a marriage was not terminated in 1926, the presumption of the validity of a later marriage was not rebutted because there was no showing that a divorce had not been obtained in other proceedings in the same county or elsewhere).

Although some evidence of the absence of a divorce has been presented, the search of records is incomplete in several jurisdictions. It appears that the two individuals have lived in a number of states, including North Carolina, Georgia, Texas, Florida, and Oklahoma. The wage earner currently lives in Oklahoma, but there has not been a check of Oklahoma divorce records. North Carolina vital records were checked for the period from 1977 through 1981. Records from Hill County, Texas were searched from 1980 to November 25, 1997. Harris County, Texas records were checked from 1979 to November 7, 1997. A final divorce decree has not been located. Although a number of jurisdictions and time periods have been checked, there are gaps. In order to rebut the presumption of the validity of the most recent marriages, P~ is not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App.-El Paso 1985, petition for discretionary review refused) (citing Davis v. Davis, 521 S.W.2d 603 (Tex. 1975)). At present, the search of records is incomplete in several likely jurisdictions. Therefore, P~ has not carried her burden of rebutting the presumption of the validity of the two current marriages.

Laches

The length of time that has elapsed is a factor that would be considered by a court. The wage earner has been married to his current wife since April 1980. P~ has been married to A~ since 1985. As outlined above, the lapse of time increases the strength of the presumption of the validity of the most recent marriage. See Loveless, 64 S.W.2d at 574. Moreover, an unreasonable delay in asserting a claim can also result in a court applying laches ^[17] against the claimant. Texas courts have indicated that in order to justify the application of the doctrine of laches there must generally be both an unreasonable delay and prejudice or disadvantage to another. See Jernigan v. Scott, 518 S.W.2d 278, 282-283 (Tex. App.-San Antonio 1974, writ ref. n.r.e.); ^[18] Simpson, 380 S.W.2d at 861.

In the instant case, both parties have been remarried for over seventeen years. Thus, it is our opinion that the length of time that has expired and the length of the current marriages being challenged are factors that would be considered under Texas law. Therefore, we believe the doctrine of laches would be an applicable factor, under Texas law, in finding P~ estopped from asserting that she continues to be married to the wage earner.

You indicated in your request that the wage earner currently lives in Oklahoma. It is not clear that the wage earner had a permanent home in Oklahoma when P~ applied for spouse's benefits in 2002. See 42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345 ("To decide your relationship as the insured's wife or husband we look to the laws of the State where the insured had a permanent home when you applied for wife's or husband's benefits."). Texas law controls with respect to P~'s November 6, 2001, application. The wage earner was living in Texas when he was contacted on November 27, 2001. P~ apparently filed again on May 10, 2002. Both the wage earner and his current wife reported a change of address to Oklahoma on July 2, 2002. It is not clear from the record that the wage earner was living in Oklahoma when P~ again applied for benefits. However, even if the wage earner were living in Oklahoma when P~ applied for benefits, or if she files for benefits again, it is our opinion that the application of Oklahoma law would not result in a different conclusion.

Under Oklahoma law, there is a presumption of the validity of the latest in a series of marriages, such that earlier marriages are presumed to have ended in divorce absent evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffield, 357 P.2d 434, 437-439 (Okla. 1960); Templeton v. Jones, 259 P. 543, 544-545 (Okla. 1927). The presumption of the validity of a second marriage increases with the passage of time. Marcum, 406 P.2d at 973. The presumption, although strong, can be rebutted. The Supreme Court of Oklahoma has explained:

Whether the person attacking a marriage has introduced sufficient evidence to overcome the presumption of validity of the marriage depends upon the length of time that the attacked marriage has continued, whether a successful attack will in effect being about an adjudication that children of the marriage under attack are illegitimate, and other facts.

Norton, 357 P.2d 434, 439. Again, given the length of the current marriages, it is our opinion that P~ has not carried her burden of rebutting the presumption of the validity of the current marriages.

Moreover, Oklahoma courts have also applied the doctrine of estoppel. In a 1987 case, the Oklahoma Supreme Court held that the doctrine of estoppel precluded an individual from asserting her status as decedent's surviving spouse. Allen v. Allen, 738 P.2d 142 (Okla. 1987). A petition for divorce had been filed, but it was later dismissed, and no decree was entered. Id. at 143. The parties remained separated. Six years after they separated, W~ entered into a common law marriage that she later acknowledged. She never asserted the existence of her prior marriage. The court held that her conduct precluded the assertion of her right to the estate. Id. Plaintiff had not asserted her relationship with the decedent for thirteen years. Id. at 144. She was estopped from asserting a continual marital relationship with the decedent. Id. In another Oklahoma case, a husband who married another person without obtaining a divorce was estopped from denying the existence of the second marriage and could not share in the estate of his first wife. Darrough v. Davis, 275 P. 309 (Okla. 1928). Thus, even if Oklahoma law were applicable, our analysis would not change and the result would be the same.

CONCLUSION

We do not believe P~ is entitled to spouse's benefits based on her marriages to the wage earner. Given the length of time that has elapsed and conflicts in the record it is our opinion that P~ has not rebutted the presumption of the validity of the current last marriages. Moreover, P~ would be estopped from asserting that she continues to be married to the wage earner, given her subsequent marriages and the time that has elapsed. This analysis is based on Texas law, because the wage earner lived in Texas when P~ first applied for spouse's benefits. However, the same conclusion would be reached under Oklahoma law. .

Tina M. W~

Regional Chief Counsel

By: ___________________________

Kendall M. R~

Assistant Regional Counsel