The claimant most likely has rebutted the presumption favoring the validity of her second marriage by producing a Florida court’s judgment of annulment, which declared her second marriage null and void.

Under Florida law, a prior spouse can be deemed to have repudiated his or her status by certain conduct. In those instances, the spouse would be estopped from asserting rights under that marriage, including rights as a widow. In this case, the claimant lived with her second husband for years without ever raising the notion that her second marriage was invalid. She waited until after her first husband died, when the possibility of benefits arose, to argue that she had never divorced her first spouse. The claimant also refused to disclose her first marriage on her marriage license to her second husband, applied for and received spousal benefits based on her first husband’s record, and represented in that application for spousal benefits that she was divorced from her first husband. Based on this conduct, the claimant is likely to be estopped from claiming widow’s benefits based on her first husband’s death.

The agency should further develop the record to determine whether the claimant’s conduct rises to the level of fraud or similar fault.

 

ISSUES PRESENTED

On March 4, 2014, after marrying Donald and collecting spousal benefits based on Donald’s record, Theresa applied for widow’s benefits based on the death of her first husband, Jackie. You requested an opinion on three issues in connection with Theresa’s application for benefits:

1. Notwithstanding the presumption of validity that the law affords to an individual’s latest marriage, is Theresa nevertheless entitled to widow’s benefits based on Jackie’s record given that a Florida court has declared her marriage to Donald null and void?

2. Is Theresa estopped from denying the validity of her divorce from Jackie?

3. Is the agency entitled to re-open Theresa’s spouse claim on Donald’s record due to fraud or similar fault?

SUMMARY

Based upon our review of the facts of this case and our research of relevant law, Theresa most likely has rebutted the presumption favoring the validity of her second marriage to Donald by producing a Florida court’s judgment of annulment. However, while Theresa likely has rebutted this presumption, she may still be estopped from claiming widow’s benefits based on Jackie’s death. Although Theresa’s conduct in this case is suspicious and may estop her from claiming widow’s benefits, the agency should further develop the record to determine whether her conduct rises to the level of “fraud or similar fault,” as those terms are defined by the agency’s rulings and operating procedures.

BACKGROUND

Theresa was born on September, making her 81 years old when she applied for widow’s benefits in March 2014. See Certified Transcript of Birth; but see Certified Transcript of Marriage between Jackie and Theresa (listing Theresa’s birth as September). On August 28, 1954, when she was 21 years old, she married Jackie in North Tonawanda,

New York. See Certified Transcript of Marriage between Jackie and Theresa.

On May 24, 1973, the County Clerk of Rock Island, Illinois, issued a marriage certificate to Theresa and another man, Donald. See Marriage License (Adult) from Dept. of Public Health (Rock Island County, Ill.). Notably, there is no documentation of a divorce between Jackie and Theresa. Moreover, the Illinois marriage license of Donald and Theresa does not mention Theresa’s prior marriage to Jackie. To the contrary, it states: “Number of Bride’s Marriage: First.” See id. However, the Illinois marriage license refers to Theresa as “Theresa ,” Jackie’s last name, even though Theresa apparently represented to the clerk that this was her first marriage. We understand that Jackie remarried in September 1977, although we do not have a record of his marriage license.

Years later, in September 1996, Theresa began to receive benefits on her own record and on Donald’s record. When Theresa applied for spousal benefits on Donald’s record, she represented that she was divorced from Jackie. She did not provide a divorce date or any other proof of divorce for that matter. Around that same time, Donald similarly represented that Theresa was “free to remarry after her divorce from Jackie.” The divorce purportedly occurred in

North Tonawanda, New York. See Aug. 12, 2014 e-mail memo to B. O’D~ (setting forth known facts).

When Jackie applied for benefits on his own record, he also stated that he was divorced. Just as in the case of Theresa and Donald, Jackie did not specify when the divorce occurred, nor did he provide any other proof of divorce. According to Jackie, the divorce took place in Utica, New York. See id.

On March 20, 2007, Jackie died. See Florida Certificate of Death. At the time of his death, he was living in Ocala, Florida. Id. Based on the agency’s records, Jackie had been living in Florida for at least four years before he died. Jackie’s death certificate identifies Thelma as his surviving spouse. Id. The certificate does not mention Theresa. Id.

Over five years after Jackie died, in October 2012, Theresa completed a Social Security Administration form titled Statement of Claimant or Other Person. Notwithstanding her prior representation to the agency that she was divorced from Jackie (when she applied for spousal benefits based on Donald’s record), she certified in this form that she lived with Jackie for 16 years, she started divorce proceedings in 1968 in New York, but the divorce was never finalized. See Form 0960-0045.

On February 20, 2014, at Theresa’s request, a county court in Florida issued a judgment of annulment, declaring her marriage to Donald null and void. See Final Judgment of Annulment. In its annulment order, the court made several findings based on the court file and other evidence before the Court: (1) Theresa had divorce papers drafted, but no divorce was obtained; (2) Theresa and Jackie were estranged until he died in 2007; (3) at some unspecified time, Jackie told Theresa that they were divorced even though she had not received any paperwork to that effect; (4) Jackie married someone else, which verified Theresa’s belief that they were divorced; (5) when Theresa married Donald in 1973, she was “mistaken in her belief, unaware and did not understand that she was still ‘lawfully’ married to Jackie”;

(6) under Florida law, her second marriage to Donald was considered a “bigamous marriage,” which is void (not merely voidable); and (7) once Theresa realized this, she “made all attempts to correct this matter.” Id. at 1, ¶¶ 1-6. Based on its findings, the court declared the marriage between Theresa and Donald null and void, stated that it was annulled, and restored Theresa’s former last name of “W~.” Id. at 2, ¶¶ A-C.

Less than a month after the Florida court issued its judgment of annulment, on March 4, 2014, Theresa applied for widow’s benefits under Jackie’s social security number. A report of contact from April 3, 2014, states: Theresa “filed for divorce in 1970 but the divorce was never finalized. She stated the divorce papers were sent to [Jackie] and they were returned in the mail unsigned. . . . [Theresa] got married to Donald knowing that she was still married to Jackie. She stated that Jackie could have divorced her without her knowledge . . . This claim is being denied because Theresa remains married to Donald and cannot establish her entitlement to survivor benefits on the Deceased Wage Earner’s record.” See Apr. 3, 2014 Report of Contact. Theresa provided the agency with the Florida court’s judgment of annulment.

DISCUSSION

1. 1. Theresa Most Likely Has Rebutted the Presumption Favoring the Validity of Her Second Marriage to Donald.

The first issue is whether Theresa has overcome the presumption of validity that the law affords to an individual’s latest marriage. Theresa most likely has overcome that presumption favoring her second marriage to Donald, given that a Florida court has declared her second marriage null and void.

In most states, there is “a presumption in favor of the validity of the last of two or more conflicting marriages.” Program Operations Manual System (POMS) GN 305.035(A)(1). The POMS instructs that “[i]f the State of the worker’s domicile when he/she died . . . has such a presumption, apply it where all the information and evidence supplied still leaves doubt whether a former marriage was terminated.” Id. “If the results of all development leave doubt about whether the former marriage ended and the domiciliary State’s presumption is in favor of the latest marriage, benefits may not be payable to the former spouse claimant.” Id.

Given that Jackie was domiciled in Florida when he died, Florida law applies here. See Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983) (stating that the “validity of the last marriage for purposes of entitlement to widow’s benefits is tested by state law” and applying Florida law). “In Florida, it is firmly established that when the validity of a subsequent marriage is challenged, as against a previous one of the same person, one of the strongest presumptions in the law exists in favor of the validity of the last marriage, whether the marriage was ceremonial or by common law.” Id. at 1285-86 (internal quotations omitted); accord Teel v. Nolen Brown Motors, Inc., 93 So.2d 874, 876 (Fla. 1957) (setting forth presumption).

The party who seeks to attack “the validity of the second marriage bears the burden of proving that a first marriage nullifies the second one.” Smith, 707 F.2d at 1286. Further, “the degree of proof required to overcome the presumption is ‘clear and convincing evidence.’” Id. (citations omitted). Where, as here, a claimant seeks to overcome this presumption by arguing that she and her first husband never obtained a valid divorce, she must “tender evidence which when weighed collectively established the absence of a reasonable probability that her husband actually secured the divorce.” Teel, 93 So.2d at 876.

To that end, as the Eleventh Circuit explained, the “burden rests heavy upon one who attacks the validity of a second marriage on the basis that a prior marriage was never terminated.” Smith, 707 F.2d at 1288 (internal quotations omitted). The mere testimony of the claimant that she and her first husband were not divorced is “legally insufficient to overcome the presumption in favor of the validity of her [later] marriage.” Id. Rather, “Florida courts have frequently reiterated that all public records available should be exhausted in an effort to establish the fact of the absence of a divorce.” Id. As one Florida appellate court noted, “in this day of well-kept public records covering vital statistics, such as, births, marriages and divorces, we feel that to the extent possible the public records available should be exhausted in an effort to establish the fact of divorce or the absence of divorce as the case may be.” Jablonski v. Caputo, 297 So.2d 310, 312 (Fla. Dist. Ct. App. 1974) (requiring first wife to exhaust a search of public record).

Because Theresa is challenging the validity of her second marriage to Donald, she carries the burden of proving by clear and convincing evidence that there is no reasonable probability that Jackie ever secured the divorce. Smith, 707 F.2d at 1286; Teel, 93 So.2d at 876. By producing the Florida court’s judgment annulling her second marriage to Donald, Theresa probably has rebutted the presumption. On its face, that judgment declares Theresa’s marriage to Donald a “‘bigamous marriage’ which is void.” Final Judgment of Annulment at 1, ¶ 5. ^[1] By producing that order, Theresa likely has “tender[ed] evidence which when weighed collectively established the absence of a reasonable probability that her husband actually secured the divorce.” Teel, 93 So.2d at 876.

In any event, it may not make a difference given that Theresa is likely estopped from claiming widow’s benefits, as discussed below.

2. Even Though Theresa Likely Has Rebutted the Presumption Favoring Her Second Marriage, She May Still Be Estopped From Claiming Widow’s Benefits Based on Jackie’s Death.

Although Theresa may have produced enough evidence rebutting the presumption of validity the law affords to her second marriage, the analysis should not stop there. There still is an issue whether Theresa’s conduct following her separation from Jackie estops her from now claiming that, because she never actually got divorced from Jackie, she is entitled to widow’s benefits based on his death. Under the agency’s internal operating procedures and Florida law, Theresa may be estopped from asserting rights under her first marriage to Jackie.

Pursuant to the POMS, “even though a worker’s divorce would not be valid under the law of his/her domicile, the other party to the divorce may be estopped from denying its validity.” POMS GN 305.175(A)(1). For example, a party may be estopped from denying the validity of a divorce where she remarries after the divorce or “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).” Id. 305.175(A)(2). Although the POMS sets forth the basic principle of estoppel, it does not answer the precise question posed by this case, namely whether a party is estopped from asserting a right to widow’s benefits where she claims that she was never validly divorced to the decedent.

Case law offers guidance on this issue. The Commissioner looks to the law of the wage earner’s domicile at the time of his death in determining a claimant’s marital status for purposes of determining widow’s benefits. 20 C.F.R. §§ 404.344, .345. Because Jackie was domiciled in Florida when he died, Florida law applies here. Under Florida law, “a prior spouse can be deemed to have repudiated his or her status by certain conduct.” Eds v. Sullivan,

No. 88-837, 1991 WL 280032, at *3 (M.D. Fla. Sept. 7, 1991). In those instances, “the spouse would be estopped from asserting rights under that marriage, including rights as a widow.” Id.

Two cases from Florida bear a strong resemblance to this case. In both instances, the courts held that the claimant was estopped from claiming rights as a widow. In In re Butler , 444 So.2d 477 (Fla. Dist. Ct. App. 1984), Georgia and Nathaniel married, lived together briefly, and then separated. While the marriage was not legally dissolved, Nathaniel told Georgia that he had “bought” a divorce and Georgia believed him. Several years later, Georgia married another man and changed her last name. Nathaniel also remarried. Georgia was aware of Nathaniel’s second marriage. Nathaniel then died. At some unknown time (before or after Nathaniel died), Georgia found out that she and Nathaniel had never actually been divorced. Six years after Nathaniel died, Georgia filed a petition for administration of his estate, seeking to be appointed as the personal representative because she was Nathaniel’s surviving spouse.

The Florida district court of appeal held that Georgia was estopped from asserting rights under her marriage to Nathaniel. The court explained that Georgia “lived as if she had been divorced from Nathaniel and made no attempt to represent herself as his wife until six years after Nathaniel died.” Id. at 479. “[A]fter having taken advantage of the ‘divorce’ that Nathaniel told her he had bought, [she] cannot now claim the benefits of a marriage which she herself has repudiated by her subsequent conduct.” Id. The court rejected Georgia’s argument that estoppel did not apply because “she was a victim of her husband’s deceit.” Id. Quoting from a case that the Florida Supreme Court had cited with approval in Doherty v. Troxler, 66 So.2d 274 (Fla. 1953), the court stated that mere ignorance is “no excuse for [a claimant] contracting a bigamous marriage relationship with a second husband.” Id. (quoting Minor v. Higdon, 61 So.2d 350 (Miss. 1952)). Thus, the court held that Georgia was estopped from her making her claim.

In Edwards v. Sullivan, No. 88-837, 1991 WL 280032 (M.D. Fla. Sept. 7, 1991), the United States District Court for the Middle District of Florida extended Butler to deny a claimant’s application for widow’s benefits under the Social Security Act. In Edwards, Ruby married Paul. Several years later, Ruby married again and Paul also married someone else. There was no evidence that Paul and Ruby got divorced. However, Ruby later admitted that her second marriage was not legal because she had not gotten divorced from Paul. When Paul died, his second wife filed an application for widow’s disability insurance. Ruby filed an application for those benefits as well.

In evaluating which woman was entitled to benefits, the district court initially noted that the administrative law judge’s finding that the claimant rebutted the presumption favoring the validity of her second marriage was supported by substantial evidence. Id. at *3. However, the court explained, “our analysis cannot stop at this point, since the effect of Ruby’s conduct has not been examined.” Id. The court looked to Butler, which “present[ed] virtually identical facts.” Id. at *3. Relying on Butler, the district court held that Ruby’s “actions clearly repudiate her marital status to [Paul, the] wage earner.” Id. at *4. Ruby, “knowing that she was not divorced, remarried . . . and lived with [her second husband] as his wife until they separated six years later. It was not until [Paul] died, and the possibility of benefits arose, that Ruby asserted her claim as the wage earner’s wife.” Id. at *3. Based on her conduct, the court concluded, Ruby “should therefore be estopped from asserting her position as the wage earner’s first wife.” Id. at *4.

The same result seems warranted here. Just like the claimants in Butler and Edwards, Theresa

(1) married her first spouse and then separated from him, (2) allegedly never secured a valid divorce, (3) re-married another man, (4) lived with her second husband for years without ever raising the notion that her second marriage was invalid, and (5) waited until after her first husband died, when the possibility of benefits arose, to argue that she had never divorced her first spouse. In fact, Theresa took even more actions to repudiate her first marriage than the claimants did in Butler and Edwards: Theresa refused to disclose her first marriage on her marriage license to Donald, she applied for and received spousal benefits based on Donald’s record, and, most notably, she represented in that application for spousal benefits that she was divorced from Jackie. Cf. Montanez v. Crockett, Franklin & Chasen, P.A. , 687 So.2d 943, 947 (Fla. Dist. Ct. App. 1997) (where claimant represented on marriage license application that she was divorced, she was “estopped from assuming the role of [her former spouse’s] widow”). Thus, these facts present an arguably stronger case to apply estoppel than those in Butler and Edwards.

There are several dated Florida decisions in which courts refused to estop claimants from challenging the validity of their divorces. However, those decisions are distinguishable from this case. See Robison v. Krause, 136 So.2d 373 (Fla. Dist. Ct. App. 1962) (resting its decision on interpretation of Florida dowry statute, which is inapplicable here); Kreisel v. Ingham, 113 So.2d 205 (Fla. Dist. Ct. App. 1959) (interpreting inheritance laws). Not only are Butler and Edwards directly on point, but they reflect Florida courts’ more recent views on estoppel and also are more persuasive than Robison and Kreisel.

Moreover, the Butler decision forecloses any argument Theresa may have that she innocently relied on Jackie’s representation that he had finalized the divorce. The Butler court rejected the claimant’s argument that she should not be estopped because she had relied on her first husband’s representation that he “bought” a divorce. 444 So.2d at 479. Further, according to a report of contact on April 3, 2014, Theresa got married to Donald “knowing that she was still married to Jackie.” Apr. 3, 2014 Report of Contact.

Therefore, based on her subsequent conduct, Theresa is likely to be estopped from asserting her rights based on her prior marriage to Jackie.

3. The Agency Should Further Develop the Record to Determine if It Can Reopen Theresa’s Spouse Claim on Donald’s Record Based on Fraud or Similar Fault.

The final issue is whether the agency can re-open its decision to award spousal benefits to Theresa, which she received based on Donald’s record, due to fraud or similar fault. While Theresa’s conduct is very suspicious and may estop her from claiming widow’s benefits on Jackie’s record, the agency needs additional facts to determine whether her conduct rises to the level of “fraud or similar fault” to reopen her application for spousal benefits on Donald’s record.

The Commissioner “may reopen a final determination or decision on [her] own initiative” and, in doing so, “may revise that determination or decision.” 20 C.F.R. § 404.987(b). As relevant here, the Commissioner may reopen a decision “at any time” when that decision was “obtained by fraud or similar fault.” Id. § 404.988(c)(1). In evaluating whether a decision was obtained by “fraud or similar fault,” the Commissioner “will take into account any physical, mental, educational, or linguistic limitation (including any lack of facility with the English language) which [the claimant] may have had at the time.” Id. § 416.1488(c).

For a claimant’s actions to amount to “fraud,” the claimant must (1) have the “intent to defraud” and (2) make a false statement or misrepresentation of material fact, or conceal or fail to disclose a material fact, for use in determining benefits. POMS DI 27505.015(A). In this case, Theresa represented to the agency that she was divorced from Jackie at the time she applied for spousal benefits on Donald’s record. Years later, after Jackie died and the possibility of benefits arose, she then claimed that she never actually obtained a valid divorce from him. While Theresa’s conduct in this case is dubious and may effectively repudiate her first marriage for purposes of applying estoppel, the record, as it currently stands, seems to fall short of establishing that she “intend[ed] to defraud” the agency to receive Donald’s spousal benefits. Id.

The more difficult issue is whether the “similar fault” provision applies here. “Similar fault” does not require showing “fraudulent intent.” Rather, a claimant is at “similar fault” whether she either (1) “[k]knowingly makes an incorrect or incomplete statement that is material to the determination” or (2) “[k]knowingly conceals information that is material to the determination.” Id. 27505.015(B). Where “a preponderance of evidence does not establish knowledge and intent to defraud, but establishes that the recipient (or other person) knowingly did something wrong (but intent cannot be established), then SSA can determine ‘similar fault’ and can reopen and revise a determination at any time.” SSR 85-23, 1985 WL 56859, at *1 (SSA). ^[2] “A preponderance of evidence is evidence that produces a stronger impression and is more convincing as to its truth than the evidence in opposition.” Id.

To satisfy the definition of “similar fault” and reopen a determination which is more than two years old (as in this case), the following factors are required to be met: (1) “The changed event is material (i.e., will change the SSI payments) and will create a new overpayment or enlarge an existing overpayment,” (2) “[a] wide discrepancy exists between the new data and the data reported,” (3) “[t]he SSI recipient (or other person) knowingly completed an incorrect or incomplete report, knowingly concealed events or changes, or knowingly neglected to report events or changes that affect payments,” (4) “[t]he event (income, resource, etc.) can and will be verified,” (5) “[t]he event (income, resource, etc.) is clearly attributable to the SSI recipient (or the ineligible spouse, parent or sponsor of an alien in deeming situations),” and (6) “[t]he case does not involve intent to defraud.” Id. at *2.

There is not enough information in the current record to determine whether Theresa’s conduct satisfies the “similar fault” criteria. On the one hand, according to the Florida judgment of annulment, Theresa mistakenly believed she was divorced from Jackie. See Judgment of Annulment at 1, ¶ 1. Theresa also noted in a report of contact that Jackie “could have divorced her without her knowledge.” Apr. 3, 2014 Report of Contact. On the other hand, according to that same report of contact, Theresa got married to Donald “knowing that she was still married to Jackie.” Id. In addition, we do not know what information Theresa provided to the Florida court when she sought to annul her marriage to Donald, which could be crucial to determining whether Theresa “knowingly completed an incorrect or incomplete report” when she applied for benefits on Donald’s record.

Ultimately, the agency must be convinced that it is more likely than not that Theresa knowingly provided incorrect information. If the agency wishes to rely on the fraud/similar fault reopening provision, it should further develop the record in accordance with SSR 85-23.

CONCLUSION

For the reasons stated above, it is our opinion that (1) Theresa most likely has rebutted the presumption favoring the validity of her second marriage to Donald, (2) she nevertheless is likely estopped from claiming widow’s benefits based on Jackie’s death, and (3) the agency should further develop the factual record to determine whether Theresa’s conduct rises to the level of “fraud or similar fault,” thereby justifying reopening the decision on her spousal benefits based on Donald’s record.

Respectfully,

Nora R. Koch

Acting Regional Chief Counsel, Region III

By: _________________________

Joseph J. Langkamer

Assistant Regional Counsel

 

The record contains evidence of a valid foreign divorce between the NH and his first wife (the claimant) as well as NH's subsequent marriages. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. Thus, NH's marriage to his last wife is presumptively valid under NY law. This presumption may be rebutted if the claimant proves by clear and convincing evidence the fact of the absence of a divorce. The NY Family Court's decision that the Cuban divorce was void should not be binding in a subsequent administrative hearing wherein it will be determined whether the claimant is the legal widow of NH. The Family Court's finding is not determinative and the claimant can rely on it only as evidence. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to NH's marriage with his last wife will continue, and she cannot receive benefits as the NH's widow.

You have asked for advice on whether a valid marriage still exists between the claimant, Tomasa, and the number holder, Amado ("NH"); whether the New York Family Court had jurisdiction to declare their subsequent Cuban divorce void; and thus whether Tomasa is the widow of Amado. As we understand the facts of this case, Tomasa contends that she remained the legal wife of Amado until he died because the Cuban divorce was fraudulent. Based on the factual record presented to us, Tomasa has not provided clear and convincing evidence that the Cuban divorce is invalid.

FACTUAL BACKGROUND

Tomasa, formerly Tomasa, had two children with Amado in Cuba: Amado and Rosalba (Ex. 5). Both Tomasa and NH were natives of Cuba, and according to Tomasa they had an agreement to get married so they could bring their children to the United States. Tomasa came to Brooklyn some time in 1956 and Amado came shortly after. Tomasa and NH were married in New York, N.Y. on September 22, 1957 in a ceremony solemnized by clergyman, Reverend Antonio (Ex. 7). Tomasa and NH listed Brooklyn as the place of their residence (Ex. 7).

Tomasa and NH separated some time around 1960, and NH returned to Cuba while Tomasa remained in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May 25, 1960 (Ex. 1). The decree identifies Tomasa, represented by "Solicitor Francisco Rodriguez," as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA") explains that Tomasa was living in Brooklyn at the time of the divorce but sent power of attorney to Cuba (Ex. 3). Leonor, NH's third wife, similarly told the SSA that Tomasa signed away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in Tomasa's request for hearing Tomasa maintained that she is the legal wife of NH (Ex. 9). Tomasa denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent and denied any knowledge of the proceeding and signing her name to any consent or acknowledgment of the divorce action (Ex. 5).

On or about December 31, 1960, NH married Isabel, formerly Isabel, in Cuba (Ex. 4). They remained married for approximately twenty one years until NH brought a divorce action in Elizabeth, N.J. and the Honorable John ordered that the marriage be dissolved on September 16, 1982 (Ex. 4). Isabel remarried on March 18, 1983 to Jose and is still legally married to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's record (Ex. 12).

The record indicates that in 1963, subsequent to NH's marriage to Isabel, Tomasa instituted a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8). In this proceeding the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa." The Order further directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to Tomasa, it was not until she filed for this Order of Support that she became aware of the fraudulent divorce proceedings (Ex. 5).

The State of New Jersey Certificate of Marriage contained in the file demonstrates that NH was then married a third time on December 7, 1984 to Leonor (now Leonor) in Elizabeth, N.J. (Ex. 10). NH died in Miami, Florida on April 27, 2002 (Ex. 11). The Certificate of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her statement to the SSA, Leonor certified that she and NH were married and living together up until the day NH passed away (Ex. 13).

After NH's death, Tomasa applied for surviving spouse benefits on NH's record (Ex. 14). On or about November 29, 2002 the SSA notified Tomasa that she was not entitled as a wife because of NH's subsequent marriages, and she was not entitled as a divorced wife because she did not meet the duration of marriage (Ex. 14). Upon reconsideration, that determination was affirmed, reiterating that the divorce has been proven and that the marriage did not last for the requisite ten years (Ex. 14). Still, Tomasa maintains that she is the legal wife of NH, entitled to widow's benefits.

ANALYSIS

In examining widow's benefit claims, the SSA must look to the laws of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A) (2004). In this case, NH apparently was domiciled in Florida at the time of his death. As such, we must determine whether Florida would recognize the existence of a valid marriage between Tomasa and NH.Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the marriage between Tomasa and NH will be considered valid if it is valid under the law of New York, where the marriage occurred.

1. The Presumption of Validity Attaching to the Amado-Leonor Marriage:

The record indicates that NH had two other marriages subsequent to his marriage to Tomasa. NH married his third wife, Leonor, in New Jersey in 1984 and remained married to her until he died in 2002. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re L~'s Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor of validity of the last marriage is stronger than the presumption that the prior marriage continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either by death or legal action). This presumption operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to Leonor is presumptively valid under New York law, and she appears to be the legal widow of NH.

However, it is well established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the Amado-Leonor marriage may be rebutted if Tomasa provides evidence which, when weighted collectively, establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree, Tomasa must provide sufficient evidence to prove the Cuban divorce invalid in order to demonstrate that she is the widow of NH.

2. Effect of the New York Family Court's Determination:

A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a marital res subject to in rem jurisdiction, therefore a judgment determining marital status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa ." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its face, the Family Court's decision appears to be a judicial declaration of a subsisting marriage between NH and Tomasa, which rests upon a foundation of an invalid divorce.

a. Issue of Subject-Matter Jurisdiction

In this case, there is a question as to whether the Family Court had jurisdiction to determine that the divorce is void, and thus whether that court's finding is binding on an Administrative Law Judge deciding Tomasa's entitlement to widow's benefits. The Family Court, formerly known as the Domestic Relations Court, was established and the Legislature conferred such jurisdiction upon it as was essential to permit it to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act. § 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended 2001, effective 2002). In the exercise of its limited jurisdiction the Family Court is authorized to determine whether the parties are husband and wife, but such determination is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction of the subject matter of the marriage. Consequently, New York law does not recognize a Family Court's pronouncement of marital status as a "decree of a court of competent jurisdiction rendered on the merits," and such a determination is not binding on the parties in a subsequent action outside the Family Court in which there is directly involved the question of whether the same marriage exists or has been terminated. Id. at 496.

In Loomis, the Court of Appeals of New York held that a determination by the Domestic Relations Court of the marital status of the parties is a preliminary matter to exercising or declining jurisdiction and is not binding on the parties in a subsequent action in the Supreme Court where the existence of a valid marriage is directly involved because there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for support only, the other for an adjudication of marital status). Similarly, the Family Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent administrative hearing wherein it will be determined whether Tomasa is the legal widow of NH. The Family Court's decision was only incident to its finding that NH was responsible for supporting Tomasa. Thus, the preliminary matter of the marital status in Family Court is not res judicata.

Since the jurisdiction to determine the subject of marriage, where the validity of such marriage is a primary issue, lies exclusively in the Supreme Court, the Family Court's finding is not determinative and Tomasa can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has exclusive subject matter jurisdiction over divorce actions).

b. Issue of Failure to Include an Indispensable Party

Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such an assertion. The noncompulsory nature of the court's judgment regarding marital status is evident with an acknowledgment that Isabel, NH's second wife to whom he was married at the time of the proceeding, was not a party to the action.

It is well-known that a court may always consider whether there has been a failure to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be "inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005). With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for a declaration of legal relations serves a legitimate purpose only where all persons who are interested in or might be affected by enforcement of such rights and legal relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R. § 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to third parties who should not be "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.

New York Courts have held that, where in an action by one spouse for a judgment declaring that a foreign divorce decree is null and void, it appears that subsequent to the procurement of the divorce the defendant married a third person, such third person must be joined as a party defendant, since that person is an indispensable party without whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y. 1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App. Div. 1945).

Here, NH was married to Isabel at the time of the Family Court's proceeding. Although the court's declaration of the nullity of the Cuban divorce related primarily to the marital status of NH and Tomasa, it also necessarily implied that the Amado-Isabel marriage was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel was a necessary and indispensable party without whom no effective judgment regarding marital status could have been rendered. Accord B~, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all persons whose rights may be affected by the judgment there cannot be a final and complete determination of the controversy). The fact that Isabel was not a party to the action confirms that the court's finding of a surviving marriage is not binding in Tomasa's administrative hearing concerning her eligibility for widow's benefits. It is, thus, our opinion that the ALJ may form his own conclusion with respect to whether a marriage subsists or whether the Cuban Divorce is valid.

3. Recognition of the Cuban divorce decree

In determining whether Tomasa is the legal widow of NH, the issue of marital status is complicated by the contradictory evidence regarding the divorce. Tomasa contends that she was separated from NH for over 39 years, but was never served with divorce papers. However, NH submitted proof of the Cuban divorce when he applied for Social Security benefits. The first question to be determined is the extent to which recognition must be accorded the Cuban divorce decree in a New York court. Secondly, the possibility that the divorce may have been fraudulently obtained must be considered.

a. The Doctrine of Comity

New York courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert, American Conflicts Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce action is precluded from attacking the validity of the foreign judgment in a collateral proceeding brought in the New York courts, absent some showing of fraud in the procurement of the judgment or some showing that recognition of the judgment would violate a strong public policy of the State. See G~, 414 N.E.2d at 697-698.

In the case at bar, Tomasa has failed to adduce evidence demonstrating that the Cuban court did not have personal jurisdiction over her. The record includes the translation of the Cuban Decree which indicates that Tomasa was the plaintiff and was represented by Solicitor Francisco Rodriguez. Thus, her appearance, through an attorney, in the divorce action gave the Cuban court jurisdiction to grant the divorce unless such appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce decree under the doctrine of comity unless Tomasa can demonstrate fraud or a violation of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).

b. Demonstrating Fraud

The Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proof and evidence necessary to establish the right to benefits. 42 U.S.C. § 405(a) (2006). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708 (2006). In deciding whether evidence is convincing, the SSA will look to whether "information contained in the evidence agrees with other available evidence, including our records." 20 C.F.R. § 404.708(f) (2006).

Here, the record contains evidence of a valid divorce between NH and Tomasa as well as NH's subsequent marriages. This evidence conflicts with Tomasa's claim that she is the widow of NH as well as the determination of the Family Court that the Cuban divorce is void. Since Tomasa bears the ultimate burden of proving that she is entitled to benefits as NH's widow, it is her obligation to provide clear and convincing evidence that the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive. Tomasa has not produced any records which tend to show that she did not bring the divorce suit or that her power of attorney was unauthorized. Tomasa, therefore, has not carried her burden of proof. Consequently, if no further evidence is submitted, the presumption of validity attaching to NH's marriage with Leonor will continue, New York courts will give recognition to the divorce decree, and Tomasa cannot receive benefits as NH's widow.

4. Divorced Wife's Benefits

Section 202(e) of the Social Security Act provides that widow's insurance benefits may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant for a surviving divorced spouse's insurance benefit must meet several requirements: she must have been validly married to a fully insured worker for a period of at least ten years immediately preceding a final divorce; must have attained age 60, or have attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§ 402(e), 402(b)(1), 416(d)(1) (2006).

It is evident that Tomasa R~ is ineligible for divorced wife's benefits. Although she meets the second two requirements - she is 85 years of age and has never been remarried - the duration requirement has not been met. The divorce occurred in 1960, less than three years after Tomasa and NH married. Since the marriage subsisted for less than ten years, Tomasa cannot receive divorced wife's benefits on NH's account.

In conclusion, on our understanding of the current factual record, Tomasa cannot be entitled to widow's benefits on NH's account because she has not proven through clear and convincing evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts may establish that the Cuban divorce is void. However, Tomasa bears the burden of proof and if no further evidence is provided she has not met her burden.

To receive spouse's benefits on the NH's record, the claimant must provide clear and convincing evidence that her prior husband was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If she can provide evidence sufficient to establish that her marriage to her prior husband was void, the validity of the NH's divorce from his prior spouse must be considered. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to her marriage with her prior husband will continue, and she cannot receive benefits as the NH's spouse.

Opinion:

You have asked for advice on whether a valid marriage exists between the number holder, Emil, and the claimant, Joan. As we understand the facts of the case, Joan contends that her first undissolved marriage to Raymond was void for bigamy based on his prior marriage to Eileen, and that therefore her subsequent marriage to Emil is still valid. Based on the current factual record, we cannot draw any conclusion but have outlined possible outcomes depending on what is uncovered in further development of the facts.

Factual Background:

Joan, formerly Joan, married Raymond in New York on December 3, 1954 in a ceremony solemnized by clergyman, Reverend John (Ex. 1). In the December 2, 1954 Affidavit for License to Marry, Raymond indicated that he had never been married and never been divorced (Ex. 2). In addition, Joan and Raymond listed New York as the place of their residence. According to Emil's statement to the Social Security Administration (“SSA”), Joan and Raymond had three children together (Ex. 3). There is no further information in the record regarding the duration or character of the Joan-Raymond marriage.

Joan attested to the City Magistrate of New York City on September 23, 1958 that Raymond committed bigamy by marrying her when he was still married to Eileen (Ex. 4). The record does not indicate when Joan first became aware of Raymond's prior marriage to Eileen. Raymond subsequently pled guilty on January 21, 1959 to perjury in the second degree (under New York Domestic Relations Law § 16 and punishable under New York Penal Law § 210.10) (Ex. 5).

In Emil's letter to the SSA, he stated that Joan told him she had never divorced “Alan" (Ex. 6). According to Emil, Joan and he met with an attorney, Anthony, to procure a divorce for Joan in preparation for their own wedding (Ex. 3). Attorney Anthony advised them that a divorce would be unnecessary as the marriage with Raymond was void because of Raymond's bigamy. Emil testified that on the strength of Anthony's advice, Joan did not divorce Raymond and that both he and Joan entered into their marriage believing that the marriage was legal. This is consistent with Joan's statement to the SSA that when she married Emil, she was free to marry and that Emil knew it (Ex. 7).

On July 16, 1962, in her sworn Application for Marriage License, Joan listed her name as “Joan Vaughn” and noted that she had never been married (Ex. 8). Emil listed the fact of his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob, Jr. in the Circuit Court of Winston County, Alabama (Id.).

As to Emil's prior marriage, your records reference a marriage between Emil and Theresa September 18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham, Alabama (Ex. 9). The record does not contain copies of the marriage license or certificate. On his application for a license to marry Ellen, Emil identified only Theresa as a prior wife and that she was alive at the time of the application (Ex. 10). He further listed incompatibility as the grounds for divorce and noted the date of divorce as June 2, 1958. Your records, however, contain a copy of the Report of Divorce between Emil and Theresa filed with the Alabama Department of Health (Ex. 11). That report lists the date of their marriage as September 27, 1950 and the date of the final decree of divorce as June 17, 1958. The divorce decree indicated that the divorce was granted to Theresa on the grounds of abandonment and that at the time of the divorce they had one child under eighteen years. The divorce decree contained no information regarding Emil's place of residence. Similarly, for Theresa, the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. No judge's signature appears on the divorce decree. The divorce decree is signed by Dorothy, State Registrar, but the date of her signature appears to be June 19, 1995. Your records show no social security number for Theresa (Ex. 9).

On July 21, 1962, Emil married Joan in Union City, New Jersey in a ceremony solemnized by Judge Frank (Ex. 8). Although they married in New Jersey, both Emil and Joan listed New York as their place of residence on the Application for Marriage License. The Joan-Emil marriage produced no children, and Joan and Emil subsequently separated (Ex. 3). Emil stated that they separated in 1964 (Ex. 3), while Joan asserted that they separated in the late 1960s (Ex. 7). Emil testified that prior to his current marriage to Ellen, he consulted attorney Anthony about obtaining a divorce from Joan (Ex. 3). According to Emil, Anthony told him that securing a divorce would be unnecessary as the marriage was void for Joan's bigamy in failing to divorce Raymond prior to marrying Emil. Emil testified that based on Anthony's counsel, he married Ellen on August 7, 1965 without first divorcing Joan. Your records confirm that Emil married Ellen on August 7, 1965 in Brooklyn, New York (Ex. 9-10).

While Emil asserted that he had no further contact with Joan after their separation in 1964 (Ex. 3), Joan stated in her claim to the SSA that Emil informed her of his plans to marry Ellen (Ex. 7). Joan stated that when she told Emil to get a divorce first, he made no comment and drove off. She reported never receiving any divorce papers from Emil.

Emil filed for retirement benefits in November 1991 (Ex. 3). He claims that because he knew his marriage to Joan was bigamous and “not legal,” he did not list Joan on his benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that Emil listed Joan as a prior spouse, indicating that they married on June 19, 1962 and that their marriage ended on January 15, 1963 (Ex. 9). Your office has also confirmed that Ellen’s in current payment status as the spouse on Emil's record. Joan has filed an application for spouse's benefits, claiming she is Emil's legal spouse. We understand from your office that Emil was residing in Florida at the time Joan filed her application.

Analysis:

In examining wife's benefit claims, the SSA will look to the laws of the State where the insured had a permanent home at the time his wife applies for wife's benefits. 20 C.F.R. § 404.344. If the spouses were validly married under State law at the time of the wife's application for benefits, the relationship requirement will be met. Id. In this case, Emil was domiciled in Florida at the time Joan filed her application for wife's benefits. As such, we must determine whether Florida would recognize the existence of a valid marriage between Joan and Emil.

Under Florida law, the validity of the marriage between Joan and Emil would be evaluated with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944)(holding that in determining the validity of a marriage, reference will be made to the “law of the place where it is contracted.... And, if valid according to the law of the State where contracted, a marriage is to be regarded as valid in every other jurisdiction”)(citations omitted). Thus, under Florida law, the marriage between Joan and Emil will be considered valid if it is valid under the law of New Jersey, where the marriage was contracted.

1. The Effect of the Joan-Raymond Marriage on the Joan-Emil Marriage:

Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because Joan and Emil properly obtained and delivered their marriage license prior to having the marriage solemnized by Judge Hahn, New Jersey would normally recognize that Joan and Emil entered into a valid ceremonial marriage on July 21, 1962, especially since neither Joan nor Emil instituted divorce proceedings against each other.

To establish eligibility for spousal benefits, presentation of a copy of the public record of marriage normally constitutes preferred evidence of a valid ceremonial marriage, such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709, 404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the validity of the latest of two successive marriages involving a common participant. Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN00305.035. Thus, it facially appears that Joan's marriage to Emil is presumptively valid.

The record, however, contains additional information indicating that Joan was already validly married to Raymond at the time she married Emil. New Jersey accepts the common law proposition that "[c]ivil disabilities, such as a prior marriage, … make the contract of marriage void Ab initio and not merely voidable.” Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage is a legal nullity, a judgment of nullity is not required to render the marriage void. M~, 83 N.J.Super. at 163, 99 A.2d at 71. Joan's marriage to Emil may be void, therefore, because of Joan's possible bigamy.

Determining who has the burden of proving the validity of the Joan-Raymond marriage is the critical issue in this case. Although New Jersey case law furnishes a burden-shifting framework for determining the presumptive validity of subsequent marriages, the Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proofs and evidence necessary to establish the right to benefits. 42 U.S.C. § 205(a). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708. In deciding whether evidence is convincing, the SSA will look to whether “information contained in the evidence agrees with other available evidence, including our records.” 20 C.F.R. § 404.708(f). Here, the record contains evidence of a valid ceremonial marriage between Joan and Raymond as well as Joan's testimony that she married Raymond and never divorced him. Accordingly, this evidence conflicts with the evidence of the validity of Joan and Emil's marriage, and Joan bears the burden of proving that her marriage to Raymond, which Joan alleges was Raymond's second marriage, was void because of his bigamy.

a. The Presumption of Validity Attaching to the Joan-Raymond Marriage:

The record indicates that Joan married Raymond in New York on December 3, 1954. Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (McKinney 2003), and the marriage is solemnized by “a clergyman or minister of any religion….” N.Y. Dom. Rel. Law § 11 (McKinney 2003). Because Joan and Raymond properly obtained and delivered their marriage license prior to having their marriage solemnized by a clergyman, New York would normally recognize that Joan and Raymond entered into a valid, ceremonial marriage on December 3, 1954.

As with New Jersey, once a ceremonial marriage has been performed, New York recognizes a strong presumption in favor of holding the latest of subsequent ceremonial marriages valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re M~'s Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued”). Furthermore, the presumption of validity of the second marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” G~, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate “a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise.” D~, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).

In this case, it seems unlikely that a court would find that the balance of equities tips in favor of invalidating Joan's marriage to Raymond. Joan and Raymond entered into a ceremonial marriage that allegedly produced three children. The presumption of validity will be particularly strong here as the legitimacy of Joan and Raymond's children may otherwise be cast in doubt. Furthermore, no strong public policy would be served by permitting Joan to void her marriage to Raymond in order to obtain wife's benefits from Emil, a man to whom she was putatively married for only three years and with whom she had no children, and who has been married to his current wife, Ellen, for thirty-nine years. On these facts, New York will likely recognize the presumption of validity that attaches to Joan and Raymond's ceremonial marriage.

Joan, however, does not dispute that she participated in a marriage ceremony with Raymond. She contends that because Raymond was previously married to another living woman at the time of their marriage, her marriage to Raymond was necessarily void under New York law. New York Penal Law establishes that “a person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse.” See N.Y. Penal Law § 255.15 (McKinney 2003). New York Domestic Relations Law states that “a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living....” N.Y. Dom. Rel. Law § 6 (McKinney 2003). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).

To rebut the presumption of validity on the grounds of Raymond's bigamous act, Joan must prove that, at the time of her marriage to Raymond, Raymond and Eileen had been validly married and the marriage had not terminated by annulment, divorce, or Eileen's death, even though this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, Joan must establish that Raymond's prior marriage to Eileen was “valid” by disproving through clear and convincing evidence “every reasonable possibility which would validate” the prior marriage. S~, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence of a divorce or annulment in a diligent record search of all counties in which both parties to the first marriage have resided will suffice to rebut the presumption. Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re B~'s Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the “strong evidence” of a certified statement as to a record search constituted prima facie evidence of no record of divorce and outweighed the oral testimony of putative spouse and presentation of an uncertified divorce decree); In re L~'s Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was sufficiently rebutted on the basis of appellant's testimony that he never instituted nor was served with any dissolution proceedings; no record of divorce in a search of all five New York City boroughs in which decedent resided; and decedent's false statement on her marriage license application that she had never before been married or divorced); In re B~'s Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where there were no children, the presumption was sufficiently rebutted on showing that decedent's first husband was still alive at and after the second marriage had been entered, and that decedent had falsely declared single status in executing her application for the subsequent marriage license).

b. Raymond's Indictment for Perjury and Possible Bigamy:

Based on the record, it can be reasonably inferred that Raymond was initially charged with bigamy for marrying Joan while he was still married to another living woman. He was then indicted for perjury in the first degree. At the time of Raymond's indictment, a conviction for perjury in the first degree required materiality to the action or matter involved. If he had been convicted of first degree perjury, then we might have assumed that Raymond falsely stated in his second marriage application that he was never before married and never before divorced, and that but for his false attestation, no marriage could have been contracted between Joan and Raymond. Raymond, however, was not convicted of first degree perjury but pled guilty only to second degree perjury. In 1958, a conviction for perjury in the second degree did not require materiality to the action at hand. Because second degree perjury did not require materiality to the action, we may not assume that Raymond admitted to having married Eileen prior to marrying Joan and that his marriage to Eileen was still valid at the time he married Joan. Accordingly, Joan may not rely on Raymond's guilty plea to perjury in the second degree as evidence of a valid marriage existing between Raymond and Eileen at the time of Joan's marriage to Raymond.

Thus, Joan must present clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. Additionally, Joan must provide proof of a diligent search of all records in all counties in all countries in which Eileen and Raymond resided to show that the marriage was never terminated. SSA may assist her. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits on Emil's record.

2. Possible Invalidity of the Emil-Theresa Divorce:

Prior to his marriage to Joan, the record indicates that Emil was married to, and divorced from, Theresa. Emil and Theresa, however, may not have been validly divorced. If the grant of divorce between Emil and Theresa was not legitimate, then Joan's marriage to Emil would be void and she could not receive benefits as Emil's spouse. Furthermore, we note that because Joan and Emil did not reside together at the time of her application for spousal benefits, Joan may not receive benefits as Emil's deemed wife. If further development of the facts by the SSA establishes that the divorce between Emil and Theresa was invalid, then Joan cannot receive benefits as Emil's spouse because his marriage to Theresa was never terminated. There are no copies of a marriage certificate or application for a marriage license for Emil and Theresa. Although your records contain a copy of Emil and Theresa's divorce decree, it is possible that the divorce decree may have been invalid, either because of jurisdictional infirmities arising from Theresa's failure to establish bona fide residence in Alabama or because the divorce may have been fraudulently granted.

a. Issues of Jurisdiction

With respect to the issue of Theresa's residency in Alabama, the Alabama Supreme Court has explicitly held that “Alabama courts have no jurisdiction over the marital status of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred on the courts, even with the parties' consent.” Winston v. Winston, 279 Ala. 534, 537 (1966)(reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama established that “[w]hen the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved….”

In this case, there is a question as to whether Theresa established a bona fide residence in Alabama when she instituted divorce proceedings against Emil, given that the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. And, if Theresa was a resident, we do not have any information regarding the length of her residency. Although Emil noted in his application to marry Ellen that Theresa had served him with summons in Brooklyn, we do not have a copy of the summons. Further factual development by the SSA, especially review of the allegations regarding residence contained in the summons, should be undertaken to determine Theresa's residency status at the time of the divorce proceedings.

b. Fraud:

The issue of the validity of Emil and Theresa's divorce is further complicated by the possibility that their divorce decree may have been fraudulently granted by Judge Moore. Charges were brought against Judge Moore in 1964 for granting over 5000 divorces to nonresidents in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972)(affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge Moore's stamped or typed name, an embossed court seal, and certification by the Register in Chancery attesting that the decree was on file and recorded in the records of the Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled and unrecorded. Edwards, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed the trial court's jury instruction that “if you find from the evidence that a divorce decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of Alabama was not signed by the Judge of that court and did not in some other way reflect that it was the decision of the court and was not filed or enrolled in the records of that court, then you would be justified in finding that such a decree was not a valid divorce decree.” Id. at 882 (emphasis in original)(citations omitted).

The relevant facts in the record are insufficient to determine whether the Emil-Theresa divorce was fraudulently granted. First, Emil admitted that he did not appear in person in court. Second, the divorce decree listed Theresa's residence as “Ala” but included no other information on residency for Theresa or Emil. Third, the divorce decree contained no signature by Judge Moore. Fourth, although the divorce decree contains a signature by Dorothy, State Registrar, attesting to the embossment by official seal, the date of her signature appears to be June 19, 1995. Finally, the divorce decree, on its face, appeared to have been validly recorded in the Alabama Department of Health, Bureau of Vital Statistics. Accordingly, further research must be conducted to ascertain whether Judge Moore fraudulently granted a divorce to Emil and Theresa. We suggest that the SSA request official copies of Emil and Theresa's divorce decree from the Winston County Clerk at the Winston County Vital Records and the Alabama Department of Public Health, Center for Health Statistics, Office of Vital Records. The addresses are:

We recognize that the ultimate burden of proof lies with Joan to prove that she is entitled to benefits as Emil's spouse. However, because the SSA, an uninvolved party to the Emil-Theresa marriage, questions the validity of the Emil-Theresa divorce and because the SSA has greater investigative resources than Joan, the courts of New York will likely find that the SSA has the burden of conducting the substantial records searches required to determine the validity of the Emil-Theresa marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972)(holding that “[g]iven the comparatively great investigative resources of the Secretary and the apparently restricted means of appellant, it seems more appropriate to require the agency to undertake the substantial record searches necessary to negative the continued validity of [the prior marriage] … [particularly as] the presumption favoring a later marriage assumes greater force where…the later marriage is attacked, not by a putative first wife or children of the first marriage, but instead by a party, like the Secretary, who is altogether a stranger to any domestic relationship in question”); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983)(where plaintiff requested that the Secretary conduct the considerable record searches required to prove the continued validity of her husband's prior marriage, “[i]t was not the plaintiff's responsibility to ferret out this information. It was the Secretary's obligation to overcome the presumption of the validity of [plaintiff's] marriage”). It is important to note, however, that if, after reasonable efforts, the evidence is inconclusive or insufficient to establish the invalidity of Emil's divorce from Theresa, the presumption of validity attaches to Emil's marriage to Joan. Joan, therefore, might be entitled to receive spousal benefits as the wife of Emil, assuming, of course, that she has sufficiently demonstrated that her marriage to Raymond was void.

c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:

The Supreme Court of New Jersey has held that where the validity of an “ancient foreign divorce” is challenged, equitable principles of fairness will apply to defeat invalidation. Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998)(holding that although husband provided sufficient evidence to rebut the presumption of validity of his marriage, including undisputed evidence of jurisdictional defaults associated with his wife's prior 1968 Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the validity of marriage based on the invalidity of wife's prior divorce). The court cautioned against “the human and legal problems that would result if those ancient foreign divorces are found to be invalid many years later.” Id. at 916, 152 N.J. at 233.

In determining whether a prior, ancient divorce will be found invalid, the court will consider factors such as “(1) the length of time the parties were [subsequently] married, (2) the acts undertaken by the parties that indicate they held themselves out to as husband and wife, and (3) the good faith of the party who procured the first divorce.” H~, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, Emil was married to Joan on July 21, 1962, and then to Ellen from August 7, 1965 to the present time. There is nothing in the record to indicate that Emil did anything other than to hold himself out to the public as married to Joan and later to Ellen. There is also no indication that Emil was involved in fraud. The record is not sufficient, however, to determine whether Theresa acted in good faith in procuring the divorce.

Given the language of the H~ decision, a court in New Jersey would likely find that the divorce between Theresa and Emil was valid, even if additional factual development of the record conclusively determined that there was jurisdictional error, a fraudulent grant of divorce, or fraud on the part of Theresa in pursuing a divorce in Alabama. If it turns out that Emil participated in the fraud, especially if Joan was also involved, you should contact us to discuss the issue.

In conclusion, to receive spousal benefits on Emil's record, Joan must provide clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If Joan can provide evidence sufficient to establish that her marriage to Raymond was void, the validity of Emil's divorce from Theresa must be considered as discussed above. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits as Emil's spouse.

Barbara L. Spivak

Chief Counsel, Region II

By:____________

/s/Gina Shin

Assistant Regional Counsel