QUESTION
When determining entitlement for Lydia Perez A~ (Claimant) to benefits as the spouse
of Florida resident Daniel A~ (NH), should the Social Security Administration (SSA)
apply any provisions of New York or California law to determine whether NH's Dominican
Republic divorce from Gloria Frazier A~ (first wife) would be recognized in Florida
as a valid divorce?
ANSWER
For the reasons stated below, it is our opinion that the divorce obtained in the Dominican
Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and
Claimant has not presented sufficient evidence to qualify for benefits as a deemed
spouse.
BACKGROUND
According to the file, NH married his first wife on October 20, 1969. NH and his first
wife separated some time in 1985. On September 29, 2004, while NH resided in New York
and his first wife resided in California, NH obtained a divorce in the Dominican Republic
without personally appearing in the Dominican Republic or being domiciled there. NH's
first wife states she never divorced NH. On December 15, 2004, NH married Claimant
in New York. NH and Claimant currently reside in Florida. On June 8, 2005, Claimant
filed an application seeking spouse's benefits on NH's account.
DISCUSSION
The Social Security Act (Act) provides that “an applicant is the wife, husband, widow,
or widower” of an insured individual if “the courts of the State in which such insured
individual is domiciled at the time such applicant files an application . . . would
find that such applicant and such insured individual were validly married at the time
such applicant files such application . . . .” § 216(h)(1)(A)(i) of the Act, 42 U.S.C.
§ 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband,
widow, or widower if the courts of that state would determine the applicant could
inherit a wife's, husband's, widow's, or widower's share of the insured's personal
property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that
a marriage is valid if she is satisfied that an applicant in good faith went through
a marriage ceremony with the insured individual resulting in a purported marriage
between them which, but for a legal impediment not known to the applicant at the time
of such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of
these three methods.
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a.
Claimant and NH Were Not Validly Married.
At the time of Claimant's application, NH was domiciled in Florida. So, we first look
to Florida law to determine whether she and NH have a valid marriage. It is well established
in Florida that a presumption of validity attaches to one's last marriage, and this
presumption is referred to as “one of the strongest known to the law.” King v. Keller, 117 So. 2d 726 (Fla. 1960). To overcome the presumption of the validity of the last
marriage, there must be some evidence showing that the previous marriage was not dissolved
by death or divorce. In this case, NH's first wife states she and NH never divorced.
However, once a marriage is shown to have been ceremonially entered into, it is presumed
to be legal and valid. All presumptions necessary to make a marriage valid, including
capacity to contract, attach on proof of a ceremonial marriage and cohabitation by
the parties under the belief that they were lawfully married. Grace
v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the
subsequent marriage formally entered into is 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 death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage.
Under Florida law, the validity of a marriage is determined by the law of the jurisdiction
where the marriage occurred. See
Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married
in New York, we must look to that state's law.
Under New York law, once a ceremonial marriage has been performed, there is a strong
presumption in favor of holding the latest ceremonial marriage valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the
latter marriage becomes “stronger and stronger where a substantial injustice would
be created by invalidating that marriage.” See
Grabois, 89 F.3d at 100; see also 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.” Dolan, 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).
Here, a question remains regarding the validity of NH's divorce from his first wife,
which affects the validity of his subsequent marriage to Claimant. According to New
York law, “a marriage is absolutely void if contracted by a person whose husband or
wife by a former marriage is living and the prior marriage has not been dissolved
legally.” Gonzalez v. Gonzalez, 34 Misc.2d 193, 194 (N.Y. Sup. Ct. 1962). In this case, NH sought a divorce from
his first wife in the Dominican Republic while residing in New York. New York law
states that a foreign divorce will not be recognized if none of the parties were residents
of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither
NH nor his first wife resided in the Dominican Republic at the time of the divorce.
Moreover, neither party personally appeared in the Dominican Republic for the divorce
proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent
marriage to Claimant is void. Neither Florida nor New York would look to California
law to determine the validity of Claimant's marriage.
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b.
Claimant Could Not Inherit a Widow's Share of NH's Personal Property.
Claimant could also be entitled to spousal benefits upon a finding that Florida courts
would determine that she could inherit a widow's share of NH's personal property if
he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.
If NH were to die without a will, Florida law states that a surviving spouse is entitled
to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction
where the marriage took place to determine its validity. New York would not recognize
the validity of the marriage of NH and Claimant. Because we believe New York would
not recognize Claimant's marriage as valid, we believe that Florida courts would also
decline to recognize their marriage as valid. Therefore, we further feel Florida would
not find Claimant was NH's surviving spouse within the meaning of the statute.
It is our opinion that Claimant could not inherit a spouse's share of NH's personal
property if he died intestate, because she was not his lawful wife. Therefore, Claimant
is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A)
of the Act.
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c.
The Commissioner Could Not Find A Valid Deemed Marriage.
As stated above, the Act also permits the Commissioner to find that a marriage is
valid if she is satisfied that an applicant in good faith went through a marriage
ceremony with the insured individual resulting in a purported marriage between them
which, but for a legal impediment not known to the applicant at the time of the ceremony,
would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Here, there was
a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that
Claimant had knowledge of NH's prior marriage and participated in his acquiring the
foreign divorce. However, it is unclear from the records provided whether Claimant
had knowledge that the foreign divorce would not be recognized as valid. Because there
is insufficient evidence in the record, we are unable to determine that Claimant meets
the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development
may be appropriate.
CONCLUSION
Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is
void, and she has not met her burden of proving she qualifies as a deemed wife.
Mary Ann S~
Regional Chief Counsel
By:
Jennifer P~
Assistant Regional Counsel