QUESTION PRESENTED
               Whether the divorce in Guyana of Stanley A. G~, Number Holder (NH), and Claudette
                  W. H~ (Claimant), is valid under New Jersey law.
               
               OPINION  We have determined that New Jersey will likely recognize the validity of the Guyanese
                  divorce between the NH and claimant. Further, prior to the divorce, Claimant’s marriage
                  to the NH lasted at least ten years.
               
               BACKGROUND 
               1 A marriage license shows that the NH married Claimant in Irvington, New Jersey on
                  August 14, 1990. The same marriage license lists Guyana as the birthplace of both
                  the NH and Claimant. According to the Center for Programs Support (CPS) memorandum
                  and correspondence, New Jersey has been the NH and Claimant’s regular residence since
                  the date of marriage. The NH instituted an action of divorce in Guyana against Claimant
                  in 2000. Claimant states she received notice of the divorce action, but did not respond.
                  CPS has informed us that the NH’s ties to Guyana seem tenuous due to continuous work
                  in the U.S. CPS has provided us with a document from the Guyanese High Court of the
                  Supreme Court of Judicature, dated August 13, 2000 and entered September 4, 2000,
                  regarding a decree of divorce between the NH and claimant.
               
               ANALYSIS 
               A divorced wife of an insured person is entitled to benefits if the claimant is the
                  insured’s divorced wife and: (1) the parties were validly married under state law;
                  (2) the parties were married for at least 10 years immediately before the divorce
                  became final; (3) claimant applied for benefits; (4) claimant is not married; (5)
                  claimant is 62 years old or older throughout a month in which all other conditions
                  of entitlement are met; and (6) claimant is not entitled to benefits based upon a
                  primary insurance amount that is equal to or larger than the full husband’s benefit.2 20 C.F.R. § 404.331; see Social Security Act (Act) § 202(b). In determining whether a claimant qualifies as
                  a divorced spouse under the Social Security Act, an adjudicator must determine whether
                  a divorce is valid according to the law of the NH’s domicile at the time of filing
                  an application for spouse’s benefits. POMS GN 00305.170(A)(2). In this case, assuming that NH was domiciled in New Jersey at the time of
                  claimant’s filing for divorced spouse’s benefits, the law of New Jersey would apply
                  to determine whether the divorce is valid.
               
               New Jersey Law on Validity of Foreign Divorces
               Under the principles of comity, divorces obtained in foreign countries will be recognized
                  in New Jersey so long as: (1) the foreign court had jurisdiction, and (2) the foreign
                  judgment does not offend New Jersey’s public policy. See Dominguez v. Munoz, FM-07-751-05, 2008 WL 4682024, at *4 (N.J. Super. Ct. App. Div. 2008) (citing Fantony v. Fantony, 122 A.2d 593, 596-97 (N. J. 1956)). Determining whether a foreign divorce meets
                  these requirements and is valid is fact-specific; A New Jersey court will consider
                  several factors, including the domicile of the parties, adequate notice of the application
                  for the foreign divorce and any hearings, whether both spouses participated in the
                  divorce proceedings, whether any support, asset division, and child custody provisions
                  are fair and reasonable, and the similarity of the grounds for the divorce to like
                  grounds in New Jersey. See e.g. Hirschkorn v. Hait, FM-021898-07, 2008 WL 695892, at *8 (N.J. Super. Ct. App. Div. 2008) (holding that
                  the Israeli Rabbinical Court had jurisdiction over divorce and parties where parties
                  were Israeli citizens married in Israel, living in Israel, and practicing Judaism,
                  and wife was given notice and opportunity to participate in proceedings); Chaudry v.   Chaudry, 388 A.2d 1000, 1005 (N.J. Sup. Ct. App. Div.1978) (holding Pakistani divorce valid
                  where Pakistan had jurisdiction to enter a divorce because of the Pakistan citizenship
                  of the parties, the wife’s residence in Pakistan, the judgment of an appellate court
                  in Pakistan validating the divorce, and the wife’s notice of divorce and participation
                  in appellate proceedings; further holding that the reason for the divorce, the incompatibility
                  of the parties by reason of the wife’s emotional problems and the failure to effect
                  a reconciliation is “not such a departure from grounds for divorce in this State as
                  to justify nonrecognition on public policy grounds”); Kugler v. Haitian Tours, Inc., 293 A.2d 706, 709 (N.J. Super. Ct. Ch. Div. 1972) (enjoining sales of Haitian divorce
                  packages in New Jersey because such divorces would not be recognized in New Jersey,
                  given that Haitian law does not require domicile of either parties to a divorce and
                  only requires a fleeting transitory presence).
               
               Guyanese Law on Divorce
               Because New Jersey courts inquire as to whether a foreign court had jurisdiction over
                  the parties and divorce proceedings, we sought the foreign law expertise of the Law
                  Library of Congress (LLC) to determine whether the divorce at issue would be valid
                  under Guyanese law. The LLC provided an opinion letter on this issue dated July 31,
                  2009 (copy attached). The LLC has advised us that the laws and procedures respecting
                  divorce in Guyana are contained in the Matrimonial Causes Act (the Matrimonial Act)
                  and the Rules of Court (Matrimonial Causes) (the Rules). The law in force in 2000,
                  at the time of this divorce proceeding and the most current available law are the
                  same.
               
               According to the LLC, the procedures for requesting a divorce require the presentation
                  of a petition to the High Court either by the husband or the wife. The Rules require
                  the petition to state whether there have been previous proceedings respecting the
                  marriage, provide a description of the husband, list the residences of the parties
                  and indicate the domicile of the parties, unless the wife has a different domicile,
                  in which case only the domicile of the husband need be stated. The Rules further require
                  the filing of an affidavit stating that the facts set out in the petition are true.
               
               Again, according to the LLC, grounds for divorce, if submitted by the husband, are
                  adultery, malicious desertion with or without adultery, cruelty, or unsound mind on
                  the part of the respondent. The Matrimonial Act does not define the term “malicious
                  desertion.”
               
               Neither the Matrimonial Act nor the Rules expressly state what is required for a court
                  in Guyana to have jurisdiction to grant a divorce. There is no requirement in the
                  Matrimonial Act or the Rules that a petitioner for divorce actually be a resident
                  in the country, and there are no reported cases from Guyana in which such a requirement
                  has been judicially established. The LLC noted, however, that the Matrimonial Act
                  gives the High Court jurisdiction under the common law in matrimonial causes. In determining
                  what the guiding principles of common law are, Guyanese courts turn to English common
                  law as guidance. At English common law, a court may assert jurisdiction not conferred
                  on it by a statute if the petitioner is domiciled in England or Wales, even if the
                  parties were married abroad or a breakdown of the marriage occurred abroad. Under
                  English common law, there is a distinction between a domicile of origin and a domicile
                  of choice. A person’s place of birth is normally his or her domicile of origin, whereas
                  a domicile of choice is acquired by residing in another jurisdiction with the intention
                  of making that jurisdiction his or her domicile of origin. When a domicile of choice
                  is abandoned, a person reacquires his or her domicile of origin. The LLC advises that
                  a Guyanese divorce petition must state the places of residence and at least the domicile
                  of the petitioning husband; this suggests that a petitioning husband must at least
                  be domiciled in Guyana to be able to obtain a divorce in that country
               
               The Rules, like New Jersey law, require that parties be served notice of the divorce
                  proceedings. The Rules require the service of a citation under the seal of the Court
                  to each respondent in the case and they require the service of the citation to be
                  “personal” unless the court grants permission for substitution of another form of
                  service when personal service cannot be effected. After service has been effected,
                  the citation must be returned and the certificate of service contained in it must
                  be endorsed. Moreover, the Rules require that the petitioner file an affidavit stating
                  that the respondent was “duly cited and has not appeared” before being able to proceed
                  with the divorce action against a respondent who does not appear. Thus, attendance
                  of both parties is not required in divorce proceedings in Guyana. Judges, however,
                  do have discretion to decline to proceed ex parte if they do not believe it would
                  be “expedient” to hear the case.
               
               Finally, The LLC advised that a divorce decree is to be a decree nisi when it is first
                  issued. A petitioner can petition for a decree nisi to be made absolute six weeks
                  after it is obtained. During this period, the respondent can contest the divorce,
                  even if she did not appear prior to the granting of the decree nisi. A divorce is
                  not final until it is made absolute. Under Guyanese case law, a decree absolute is
                  in effect from the day it is granted.
               
               Turning to the facts of this case, the LLC concluded that the divorce decree appears
                  to comply with the provisions of Guyana’s matrimonial causes legislation and rules.
                  First, with regard to domicile, we note that under Guyanese law, the NH must have
                  been domiciled in Guyana in order to be able to obtain a divorce. He was not required
                  to be a resident of Guyana. In this matter, the NH was born in Guyana, making Guyana
                  his domicile of origin, and the domicile he would reacquire if he subsequently had
                  a domicile of choice (such as New Jersey) and had abandoned it. Further, Guyanese
                  law required the NH to state both his residence and his domicile on the divorce petition
                  and then to file an affidavit stating that the facts set out in the petition were
                  true. Absent information that the husband perjured himself in the petition and the
                  affidavit, it appears that a Guyanese court could assert jurisdiction to grant this
                  divorce decree based on the NH’s stated Guyanese domicile, despite his seeming residence
                  in New Jersey.
               
               Second, with regard to the service of notice, Guyanese law required the NH to personally
                  serve the respondent with a citation under seal of the court. After service, the citation
                  must have been returned and the certificate of service contained in it endorsed. Thus,
                  the Guyanese court had before it proof of service on claimant. Further, Claimant has
                  stated that even though she did not respond, she did receive notice of the divorce
                  action in Guyana. We believe that the divorce decree complies with New Jersey’s due
                  process requirements. Compare Hirschkorn, 2008 WL 695892, at *8 (upholding Israeli divorce where wife was given fair notice
                  of Israeli proceeding similar to the New Jersey procedural rules) with Ali v. Ali, 652 A.2d 253, 258 (N.J. Sup. Ct. Ch. Div. 1994) (finding Sharia Court divorce decree
                  offended all due process requirements and was therefore unenforceable given that wife
                  was never personally served with notice of proceedings but instead her notice consisted
                  of her relatives knowing of divorce proceeding and an alleged phone call with her
                  husband regarding the proceedings) (findings questioned subsequently by New Jersey
                  courts regarding child custody, not divorce issue).
               
               Third, the LLC has advised that the divorce in the instant case appears to comply
                  with other provisions of Guyana’s matrimonial legislation and rules. The divorce decree
                  appears to have been filed with the judge in August, making it a decree nisi, and
                  granted six weeks later in September 2000, at which time the decree nisi became a
                  decree absolute. The six weeks between the time that a divorce decree is first issued
                  and made absolute provided the claimant with an opportunity to contest the divorce.
                  A decree absolute is in effect from the day it is granted, so NH’s and Claimant’s
                  divorce was in effect as of September 4, 2000, as indicated by the divorce decree
                  document CPS provided.
               
               Finally, the divorce decree in this case was granted on the grounds that the NH stated
                  that claimant was “guilty of malicious desertion” and that the respondent failed to
                  respond to the petition. The LLC has advised that Guyana’s Matrimonial Causes Act
                  does not define the term “malicious desertion.” New Jersey similarly recognizes desertion
                  as a ground for divorce. N.J.S.A. 2A:34-2. We believe a New Jersey court would likely
                  find that the grounds for divorce in this case do not offend New Jersey public policy.
                  See Chaudry, 388 A.2d at 1005 (finding that Pakistani divorce did not offend New Jersey public
                  policy where grounds for divorce – incompatibility of parties by reason of the wife’s
                  emotional problems – were not such a departure from New Jersey grounds for divorce).
               
               Thus, we conclude that a New Jersey court would recognize the validity of the NH’s
                  Guyanese divorce.
               
               New Jersey Law on Presumption in Favor of the Second Marriage Even if there are doubts
                  concerning the NH’s and claimant’s divorce, a New Jersey court may still find the
                  divorce valid under the presumption of validity doctrine. New Jersey law recognizes
                  a strong presumption favoring the validity of the latest of two successive marriages
                  involving a common participant. See Prater v. Aftra   Health Fund, 23 F. Supp. 2d 505, 508 (D.C.N.J. 1998); see also POMS GN 00305.035; PR 06210.033. The party challenging the validity of the second marriage has the burden of proving
                  by clear and convincing evidence that (1) there was a prior marriage, (2) the prior
                  marriage was valid, and (3) the prior marriage was terminated by divorce. See Newburgh v. Arrigo, 443 A.2d 1031, 1035 (N.J. 1982); see also Prater, 23 F. Supp 2d at 508 (finding that wife’s assertion that a final judgment of divorce
                  was never entered was not clear and convincing evidence to rebut presumption that
                  marriage to decedent had been terminated by divorce).
               
               When the validity of a foreign divorce is attacked, the challenger “must prove all
                  defects, including lack of jurisdiction in the foreign courts.” Id; see also Raspa   v. Raspa, 504 A.2d 683, 685-688 (N.J. Sup. Ct. 1985). In Raspa, plaintiff’s current husband attacked the validity of plaintiff’s previous divorce
                  which was obtained in Mexico. In that divorce, plaintiff never received a summons
                  and complaint, never appeared in any divorce proceedings in Mexico, received the final
                  decree of divorce in the mail, and was told by someone that notice of action was published
                  in a newspaper. The court found that plaintiff’s current husband failed to prove by
                  clear and convincing evidence that plaintiff’s ex-husband did not go to or live in
                  Mexico at the time of the divorce proceedings, that the ex-husband obtained a mail-order
                  divorce, or that notice was not in fact published. Thus, even though there were doubts
                  as to whether the manner in which plaintiff’s divorce was obtained comported with
                  New Jersey’s due process requirements, the court found that the challenger had failed
                  to meet his burden of disproving every reasonable possibility that the Mexican divorce
                  was valid. Id.  
               Here, there is no evidence that any party is challenging the validity of the divorce.
                  Further, since there does not appear to be clear and convincing evidence to the contrary,
                  a New Jersey court will likely find that the NH’s subsequent marriage was valid and,
                  by extension, that the NH and the claimant are no longer married.
               
               Finally, based on the date of marriage in the certificate of marriage you have provided
                  (August 14, 1990) and the date on which the divorce decree became absolute (September
                  4, 2000), Claimant’s marriage lasted at least ten years. POMS GN00305.035.
               
               CONCLUSION
               Based on the foregoing, a New Jersey court will likely find the divorce between the
                  NH and claimant was valid. Further, prior to the divorce, Claimant’s marriage to the
                  NH lasted at least ten years.
               
               Stephen P. C~
 Acting Regional Chief Counsel
               
               By:
 Joanne J~
 Assistant Regional Counsel
               
               1 CPS provided us with the following documents: a marriage license and a certificate
                  of marriage for the NH and the claimant, a document from the Guyanese High Court of
                  the Supreme Court of Judicature, dated August 13, 2000, and entered September 4, 2000,
                  regarding a decree of divorce between the NH and the claimant, and a record of marriage
                  for the NH and Yvonne D. A~. Other facts are derived from a memorandum and e-mail
                  correspondence between CPS and the Office of General Counsel. This opinion is based
                  on the facts as presented.
               
               2  To be entitled to benefits as an independently entitled divorced spouse, claimant
                  must also have been divorced from the insured for at least two years. 20 C.F.R. §
                  404.331(f) CPS has also provided us with a marriage license showing that the NH married
                  Yvonne D. A~, also born in Guyana, on February 14, 2002 in Plainfield, New Jersey.