The claimant remarried prior to age 60 and was not disabled. He cannot be entitled to widower's benefits since his divorce from his subsequent spouse is not recognized. A divorce decree granted by another State or country when neither party was domiciled in that State or country at the time of the divorce is not recognized under Massachusetts law.

This is in response to your request for an opinion regarding whether a divorce granted in Mexico is valid for purposes of determining eligibility for widower's benefits. The request was forwarded to our office by the Office of General Counsel in Atlanta, because the numberholder died while domiciled in Massachusetts. For the reasons discussed below, we believe that the divorce granted in Mexico in this case is not valid.

Background

The number holder, Micalea J. C~, and the claimant, James E. C~, were married on September 14, 1968, in Townsend, Massachusetts. The number holder died on July 1, 2000, in Massachusetts. Thereafter, the claimant married Jeanne M~ on October 2, 2004, in Lewisboro, New York. The claimant and his second wife were divorced pursuant to a final decree issued by the Civil Court of First Instance in Calpulalpan, Mexico on August 11, 2008. Both the claimant and his second wife were residing in South Carolina at the time of the divorce. It appears that neither the claimant nor his second wife appeared before the tribunal in Mexico, but rather that both parties were represented by a legal representative vested with a power of attorney. In any event, neither the claimant nor his second wife was domiciled in Mexico at the time of the divorce. The claimant, now age sixty-two (62), applied for widower's benefits on September 5, 2008.

Analysis

Under the Social Security Act, a widower is entitled to old-age or disability benefits if he meets several criteria. See Social Security Act, § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.335 (2008). Here, the claimant clearly meets four out of the five criteria: he had been married to the numberholder for more than nine (9) months prior to her death, and he was considered the numberholder's widow under the law of the state in which the numberholder had a permanent home at the time of her death, Massachusetts, see 20 C.F.R. §§ 404.335(a)(1), 404.345; he applied for widower's benefits, see 20 C.F.R. § 404.335(b); he is sixty-two (62) years-old, see 20 C.F.R. § 404.435(c); and he is not entitled to an old-age benefit that is equal to or larger than the numberholder's primary insurance amount, see 20 C.F.R. § 404.435(d).

The fifth criterion is the only one at issue. Under 20 C.F.R. section 404.435(e), the claimant must be unmarried to qualify for widower's benefits, unless 1) he remarried after he turned sixty (60) years-old; 2) he is at least sixty (60) years-old, remarried after he turned fifty (50) years-old but before he turned sixty (60) years-old, and was entitled to widower's benefits as a disabled widower at the time of remarriage; or, 3) he is at least fifty (50) years-old but not yet sixty (60) years-old, remarried after turning fifty (50) years-old, and was disabled at the time of remarriage. Here, the claimant remarried at age fifty-eight (58), see 20 C.F.R. § 404.435(e)(1), but was neither disabled nor entitled to disabled widower's benefits at the time of remarriage, see 20 C.F.R. § 404.435(e)(2), (3). Thus, he is entitled to widower's benefits only if he is unmarried, see 20 C.F.R. § 404.435(e), and the Commissioner will find the claimant unmarried only if his divorce from his second wife is valid.

To determine whether a marriage or divorce of a claimant for widower's benefits is valid, the Commissioner looks to the laws of the state where the numberholder had a permanent home at the time of her death. See 20 C.F.R. §§ 404.434, 404.435. Here, the numberholder lived in Massachusetts at the time of her death, and thus the validity of the claimant's divorce from his second wife in Mexico must be analyzed under Massachusetts law to determine if the claimant is unmarried.

Massachusetts will neither recognize nor enforce a divorce decree granted by another state or country when neither party to the marriage was domiciled in that state or country at the time of the divorce. In Bergeron v. Bergeron, 192 N.E. 86, 89 (Mass. 1934), the Supreme Judicial Court would not recognize a divorce decree granted in Mexico where neither the husband nor the wife lived in Mexico, or even physically appeared before the tribunal that granted the divorce decree. The court reasoned that "[a] decree of divorce rendered by one of the other States of the United States in which neither of the parties were domiciled is not entitled to full faith and credit and will not be recognized and enforced." Id. at 88-89. The court further stated that the same principles that govern the recognition of a divorce decree from another state likewise govern the recognition of a divorce decree from a foreign country. See id. at 89. Thus, the court ruled that it could not recognize a divorce decree granted by a foreign country in which neither of the parties had been domiciled. See id.

The United States Court of Appeals for the First Circuit has acknowledged in a social security benefits case that a divorce granted in a jurisdiction in which neither of the parties was domiciled is not valid under Massachusetts law. See Slessinger v. Sec'y of Health & Human Servs., 835 F.2d 937, 942-943 (1st Cir. 1987). The First Circuit noted that the divorce in Bergeron was ex parte, but that the Supreme Judicial Court's language in that case refusing to recognize the divorce was broad and would appear to apply to bilateral divorces. See id. at 943; see also Thompson v. Harris, 504 F. Supp. 653, 654 (D. Mass. 1980) (determining, in disability benefits case, that bilateral divorce granted in Mexico was not valid under Massachusetts law where neither party was domiciled in Mexico).

In the claimant's case, both the claimant and his second wife were domiciled in South Carolina at the time of their divorce. The claimant's second wife appeared in Mexico only through her legal representative; it is not clear from the evidence whether the claimant physically appeared in Mexico or whether he also appeared only through his legal representative. In any event, neither party was domiciled in Mexico at the time of the divorce, and therefore, the divorce would not be recognized or enforced under Massachusetts law._/1 The claimant still is married to his second wife under Massachusetts law, and accordingly, is not "unmarried" as required by 20 C.F.R. section 404.435(e), to be entitled to widower's benefits.

Conclusion

For the reasons discussed above, we believe that the Probate Court's finding that a common-law marriage existed is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.

Robert J. T~
Regional Chief Counsel
By: ______________________
Nicole A. L~
Assistant Regional Counsel

_/1 We note that even if the courts of Massachusetts looked to the law of South Carolina to determine the validity of the divorce, since the parties then resided in South Carolina, the result would not change. The Office of the General Counsel, Region IV, has concluded that South Carolina would not recognize the divorce as valid because neither party resided in Mexico.

Under Massachusetts State law a decree of divorce rendered by another State or foreign country in which neither of the parities was domiciled is not recognized.

FACTUAL BACKGROUND

The number holder, Terrance C~, and the claimant, Margaret E. C~, were married on March 6, 1973, in Williamsburg, Virginia. During a trip to the Dominican Republic in April 1993, which lasted approximately one week, the claimant appeared at a divorce proceeding before a Dominican tribunal. The number holder was not present at the divorce proceeding, but he was represented by an attorney. The attorney was acting pursuant to a Special Power of Attorney executed by the number holder on April 12, 1993. On April 15, 1993, the Dominican court entered a divorce decree. At the time the divorce was granted, the number holder was domiciled in Massachusetts and the claimant was domiciled in Florida. The claimant did not intend to reside in the Dominican Republic and admits that she made the trip for the purpose of obtaining a divorce from the number holder.

The claimant applied for divorced spouse benefits on March 5, 2008, in the Portsmouth, New Hampshire field office. The claimant is sixty-two (62) years old and is currently unmarried. The number holder currently resides in Massachusetts.

Analysis

The Social Security Act ("the Act") provides for the payment of benefits to the wife or divorced wife of an individual entitled to old-age or disability insurance benefits if such wife or divorced wife meets certain criteria. Act § 202(b)(1); 42 U.S.C. § 402(b)(1); 20 C.F.R. §§ 404.330, 404.331 (2008). A woman may receive benefits as the wife of an insured person if: 1) she is considered the wife of the insured person under the laws of the state where the insured had a permanent home at the time the application was filed; 2) the spousal relationship has lasted at least one (1) year; 3) she and the insured are the natural parents of a child; 4) she applies for wife's benefits; 5) she is age sixty-two (62) or older throughout a month that she meets all other conditions of entitlement; and, 6) she is not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife's benefit. 20 C.F.R. § 404.330. In order to receive benefits as a divorced wife on an insured individual's account, the divorced wife must: 1) be the insured individual's divorced wife; 2) have been validly married to the insured individual under state law; 3) have been married to the insured individual for at least ten (10) years immediately before the divorce became final; 4) apply for divorced wife's benefits; 5) be unmarried; 6) be age sixty-two (62) or older throughout a month in which all other conditions are met; and, 7) not be entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife's benefit. 20 C.F.R. § 404.331. Based on the evidence provided, we conclude that the claimant meets all of the requirements for wife's benefits on the number holder's account. Although the claimant appears to meet all of the requirements for divorced wife's benefits, we must first assess the validity of the parties' divorce in order to determine her eligibility.

To determine whether the parties were validly married, the Commissioner must refer to the laws of the state where the insured had a permanent home when the claimant applied for benefits. 20 C.F.R. § 404.345. The evidence indicates that the number holder was domiciled in Massachusetts at the time the claimant applied for divorced wife's benefits and, therefore, Massachusetts law governs the determination of the validity of the parties' marriage and subsequent divorce.

In the case of Williams v. North Carolina, 325 U.S. 226 (1945), the Supreme Court explained that domicile is the basis of a state's jurisdiction to grant a divorce, and the full faith and credit clause of the United States Constitution does not prevent another state from questioning the jurisdictional basis of the decree when neither party was domiciled in the decree-granting state. The Supreme Judicial Court of Massachusetts ("SJC") similarly found that a decree of divorce rendered by another state in which neither of the parties was domiciled is not entitled to full faith and credit and will not be recognized and enforced. Bergeron v. Bergeron, 287 Mass. 524, 192 N.E. 86, 89 (1934) (citations omitted). The SJC determined that the same principle governs the recognition of a divorce granted in a foreign country, holding that "the courts of a foreign country have no jurisdiction to dissolve the marriage of parties not domiciled in such foreign country at the commencement of the proceedings for divorce…To recognize the [foreign] divorce as valid in the circumstances here disclosed would frustrate and make vain all State laws regulating and limiting divorce. By such recognition State control over the marriage relation would be destroyed." /_1 Id.

While the divorce at issue in the Bergeron case is unlike the divorce here because neither the husband nor the wife in Bergeron appeared in Mexico for the divorce proceeding and the husband had no knowledge of the proceeding until after the decree had been entered, we believe that the court's ruling is applicable. In fact, the First Circuit Court of Appeals applied the Bergeron holding in a case with facts identical to those here. In Slessinger v. Secretary of Health and Human Services, 835 F.2d 937 (1st Cir. 1987), a couple obtained a divorce in the Dominican Republic. As here, the wife personally appeared before the Dominican court and the husband appeared through an attorney. Slessinger, 835 F.2d at 941. In its analysis, the First Circuit noted that the majority of states that have considered this issue declined to recognize bilateral foreign divorces decreed in the absence of domicile. Id. at 942 (citations omitted). The court further reasoned that the language of the Bergeron decision was broad and appeared to extend to bilateral divorces. Id. at 943. The divorce obtained in the Dominican Republic was declared invalid even though both parties were represented at the divorce proceeding. Id.

In light of these decisions rendered by the state and federal courts, we believe that the divorce granted to the claimant and the number holder in the Dominican Republic is not valid under Massachusetts law.

Conclusion

We believe that the divorce granted in the Dominican Republic is not valid because it would not be recognized under Massachusetts law, the state where the number holder resided at the time of the claimant's application for benefits. Neither the number holder nor the claimant was a domiciliary of the Dominican Republic at the time the divorce was granted. Although the claimant meets the other requirements necessary for entitlement to divorced spouse benefits, the first criterion, that the parties be divorced, has not been satisfied. The claimant, however, satisfies all of the criteria for wife's benefits. Accordingly, we believe that the claimant qualifies for wife's benefits on the number holder's account, but she is not eligible for divorced wife's benefits.

_/1 The United States District Court of Massachusetts reaffirmed this conclusion when it decided that a divorce obtained in Mexico, where neither party was domiciled, was invalid because "Massachusetts follows the general rule that domicile is a jurisdictional prerequisite to a valid judgment of divorce." Thompson v. Harris, 504 F. Supp. 653, 654 (D.Mass. 1980) (citation omitted).