You have requested an opinion on whether the State of Delaware would recognize the
validity of the Mexican divorce between Barbara K~ and her first husband, William
S~. You want to know whether Barbara can be considered the legal spouse of David C.
K~, the number holder, thereby entitling her to wife's insurance benefits on his record.
For the reasons explained below, we conclude that a Delaware court would probably
recognize the Mexican divorce as valid, and that Barbara could accordingly qualify
for benefits as the number holder's spouse, provided she is otherwise qualified. We
also believe that Delaware would recognize the divorce as valid based on equitable
considerations. In the alternative, regardless of state law, Barbara may also qualify
for benefits as the number holder's wife based upon a deemed valid marriage.
II. FACTS
As we understand the facts, Barbara and William were married in Delaware on April
12, 1952. They were divorced in Mexico on February 29, 1968, while living separately
in Delaware. According to the Mexican divorce decree, Barbara filed for divorce against
William on the grounds of incompatibility of temperaments. The divorce decree states
that Barbara personally appeared before the Mexican court and expressly submitted
to the court's jurisdiction. The divorce decree also states that William did not personally
appear at the proceedings, but that an attorney appeared on his behalf. The attorney
filed a consenting answer, expressly submitted William to the court's jurisdiction,
confessed the complaint, and joined in the prayer for divorce. The divorce decree
further provided that the two children of the marriage would continue to remain under
Barbara's custody.
Barbara admits that she did not establish residency in Mexico when she obtained the
divorce. She stated that she and William had shared the same Delaware attorney and
that this attorney had a contact in Mexico, who made all the arrangements for them.
Barbara claims that William wanted a quick divorce so that he could marry a younger
woman. Barbara acknowledged that she flew into Mexico on the morning of the divorce
and that she flew out later that night. She admits that she did not stay in any house
or hotel while in Mexico.
On May 2, 1968, following the divorce, Barbara married the number holder in Wilmington,
Delaware. She is still married to him. It is also our understanding that William got
married after the divorce in September 1968 and that he died in December 1993.
In April 2003, the number holder filed an application for retirement benefits. He
indicated in his application that he was currently married to Barbara. On May 2, 2003,
Barbara filed an application for wife's insurance benefits on the number holder's
record. In her application, Barbara acknowledged her previous marriage to William
and her divorce from him in Mexico on February 29, 1968.
III. DISCUSSION
Under the Social Security Act, a wife of an insured individual is entitled to wife's
insurance benefits if, among other requirements, she and the insured individual were
validly married under State law at the time she applied for the benefits. Social Security
Act §§ 202(b), 216(h)(1)(A)(i), 2 U.S.C. §§ 402(b), 416(h)(1)(A)(i); see also 20 C.F.R.
§§ 404.330, .345 (2003). In this case, because Barbara and the number holder were
married in Delaware, and because the number holder's permanent home is in Delaware,
Barbara's marital status must be evaluated under Delaware law.
A Delaware court is not required to recognize a foreign divorce decree; however, it
may choose to do so under the principles of comity. See Del. Code tit. 13 ' 1521 (2002) (providing that a Delaware court has the authority to
give effect to a ivorce decree of a foreign country as may be justified by the rules
of international comity). “Comity is the courtesy or mutual convenience one state will give to the decrees of
a foreign country.” Howard v. Howard, No. CS89-3723, 1990 WL 143876, at * 1 (Del. Super. Ct. January 31, 1990). Comity
permits the state to recognize foreign decrees provided they are consistent with fundamental
principles of justice. Id.
In Delaware, a key element in deciding whether to enforce a foreign divorce decree
is whether the foreign country had jurisdiction over the divorce. Williams v. Williams, 1993 WL 331874, at * 2 (Del. Fam. Ct. June 11, 1993). Delaware has long recognized
that domicile of at least one of the parties to a divorce is required for the court
to have jurisdiction. See Ainscow v. Alexander, 39 A.2d 54 (Del. Super Ct. 1944). However, recent case law in Delaware now suggests
that jurisdiction can be established by either domicile or by voluntarily invoking
it by appearance in the foreign court. Id.; Pascavage v. Pascavage, No. 923-86, 1994 WL 837452, at * 3-4 (Del. Fam. Ct. August 14, 1994), aff'd sub nom, Pascavage v. Aperio, 655 A.2d 1225 (Del. 995). See also Mitchell v. DiAngelo, 787 A.2d 715, 719 (Del. Ch. 2001), aff'd 787 A.2d 100 (Del. 001) (noting that since cases like Ainscow, there has been a “radical and ubiquitous change in public attitude toward divorce in the last half
century”).
We note that there is a prior OGC precedential opinion on this issue regarding Delaware
acceptance of foreign divorce decrees. See Program Operations Manual System (POMS) PR 06210.000, dated September 28, 1988 (Recognition of a Mexican Divorce in Delaware). In the
prior opinion, we concluded that since there was no clear Delaware case on point,
Delaware would not recognize a Mexican divorce as valid when neither party to the
divorce was domiciled in Mexico at the time the divorce was granted. We further noted
that the factual situation in that case was unclear, including the fact that one party
to the divorce denied that she was given any advance notice of the divorce even though
the divorce decree indicated otherwise. However, as stated above, we believe that
since the date of the prior opinion, Delaware law has changed in that there are grounds
other than domicile upon which the validity of a foreign divorce decree can be based
and, therefore, a court would now be more likely to recognize a foreign divorce decree
as valid, particularly based upon the specific facts of this case.
Foreign divorce decrees will still not be recognized as valid in Delaware when neither
spouse personally appeared or had any personal contact with the foreign jurisdiction.
Williams, 1993 WL 331874 at * 3 (citing to Perrin v. Perrin, 408 F.2d 107 (3d Cir. 1969). But if one spouse personally appeared in the foreign
court and the other spouse voluntarily appeared through an attorney, this may be enough
to establish that the foreign court had jurisdiction. See Perrin, 408 F.2d at 111 (Third Circuit held that a bilateral Mexican divorce decree was
entitled to recognition, where a wife was personally present in Mexico and the husband
appeared by counsel and filed a consenting answer).
Whether recognition will be given to a foreign divorce decree depends on the facts
of the particular case. A Delaware court will carefully scrutinize the facts before
finding that a spouse entered a “voluntary appearance” in a foreign court for purposes of jurisdiction. A foreign divorce decree will not
be recognized if it was obtained by a procedure which denied due process of law, was
obtained by fraud, or where the divorce offended the public policy of the state in
which recognition is sought. See Williams, 1993 WL 331874 at * 5 (court declared Guatemalan divorce decree invalid where evidence
showed that it was procured by fraud and undue influence of husband, and where neither
wife nor husband was domiciled in Guatemala or appeared in that jurisdiction); see also Pascavage, 1994 WL 837452, at * 7-8 (court refused to recognize a Panamanian divorce decree
as valid because wife did not receive proper notice of divorce action due to husband's
fraudulent conduct and, therefore, she could not be considered to have voluntarily
entered her appearance in the Panamanian courts).
In this case, it is clear that neither Barbara nor William established domicile in
Mexico. William never appeared in Mexico and Barbara appeared only for the day, leaving
at night. Thus, it is unlikely that their divorce would meet the domicile test for
jurisdiction. But there is evidence that Barbara and William satisfied the second
test for jurisdiction, namely that both parties voluntarily invoked the jurisdiction
of the Mexican courts by entering an appearance.
Barbara admits that she personally appeared in Mexico for the divorce proceedings.
The divorce decree states that she petitioned for the divorce and that she expressly
submitted herself to the jurisdiction of the Mexican court. Likewise, although William
did not personally appear in the Mexican court, he appeared in court by counsel. William's
attorney filed a consenting answer on William's behalf and submitted William to the
Mexican court's jurisdiction. There is no evidence that the appearance of either Barbara
or William was not voluntary. Likewise, there is no indication that either of the
parties was denied due process, that the divorce was obtained fraudulently or through
undue influence, or that the divorce offended public policy. There is also no evidence
that the divorce was ever challenged by either of the parties. Indeed, as noted above,
both Barbara and William entered new marriages after the divorce. Accordingly, we
believe that given recent case law and the particular facts of this case, a Delaware
court would likely find that the Mexican court had jurisdiction to issue the bilateral
divorce decree, and that it could be recognized as valid in the state.
We are also of the opinion that a Delaware court could consider the Mexican divorce
valid based on equitable considerations. In Mitchell, 787 A.2d at 715, for example, the court concluded that a former wife was estopped
from denying the validity of a divorce that was obtained over thirty years earlier,
even though it was later discovered that the divorce was fraudulent. The court held
that it would be fundamentally unfair if the former wife could benefit as a surviving
spouse, given that she actively sought the divorce in 1968 and fully enjoyed the benefits
of her divorced status. The court held that despite the fact that the divorce was
void and a legal nullity, “equity and good conscience”dictated that the former couple is left where they put themselves and treated as though
their marriage was dissolved in 1968. “There remains little if any interest in encouraging the resurrection of deceased
marriages, even if pronounced dead by other tribunals whose processes are not completely
consistent with our own.” Mitchell, 787 A.2d at 719 (quoting Kazin v. Kazin, 81 N.J. 85 (1979).
We realize that the factual situation in the present case is different from the Mitchell case. In particular, SSA was not party to the Mexican divorce. However, considering
the circumstances here, which include the fact that the divorce in question was obtained
thirty-five years ago, the fact that one party to the divorce is now deceased, and
the fact that both parties apparently accepted the divorce as valid, as shown by their
remarriages, we believe that a Delaware court would likely conclude that “equity and good conscience” would dictate that the Mexican divorce decree be recognized as valid and that there
would be no value in “resurrecting” the deceased marriage between Barbara and William.
Lastly, we note that not with standing the above discussion of Delaware law, you should
also consider whether Barbara could qualify for wife's insurance benefits based upon
a deemed valid marriage. The Social Security Act and the regulations provide that
if a claimant's relationship as the wife of the insured individual cannot be established
under State law, the claimant may be eligible for benefits based upon a deemed valid
marriage. Social Security Act § 216(h)(1)(B); 20 C.F.R. § 404.346 (2003). A claimant
will be deemed to be the wife of the insured if, in good faith, she went through a
marriage ceremony with the insured that would have resulted in a valid marriage except
for a legal impediment. 20 C.F.R. § 404.346(a).
We do not have sufficient knowledge of the specific facts regarding the marriage between
Barbara and the number holder to conclude whether the requirements of a deemed marriage
were met here. We note, however, that the Program Operations Manual System (POMS)
specifically instructs that consideration of a deemed marriage be considered first,
before determining the legality of a relationship under State law. POMS GN 00305.055C.1. Accordingly, although it appears from the facts of this case, that Delaware would
likely recognize the Mexican divorce decree as valid, we suggest that it would be
prudent for you to also determine whether a deemed valid marriage can be found here.
IV. CONCLUSION
For the reasons discussed above, it is our opinion that a Delaware court would likely
recognize Barbara's Mexican divorce decree as valid, entitling her to wife's benefits
on the number holder's record, provided she meets the other requirements for such
benefits. We also believe, however, that regardless of State law, you should also
consider whether Barbara may be entitled to wife's insurance benefits based upon the
presence of a deemed valid marriage, as set forth in POMS GN 00305.055.
We hope that the above information has sufficiently answered your inquiry.
James A. W~
Regional Chief Counsel
By:
Kenneth D~
Assistant Regional Counsel