TN 1 (07-20)
A. PR 20-065 The validity of a divorce - the Dominican Republic
DATE: June 16, 2020
1. SYLLABUS
Whether a Dominican Republic divorce decree that beneficiary, XX, number holder (NH),
submitted to the agency, validly terminated his marriage with XX (Claimant).
Whether the agency properly terminated auxiliary spousal benefits to Claimant and
assessed an overpayment.
2. OPINION
No. The Dominican Republic divorce did not terminate the marriage. Therefore, the
agency improperly terminated Claimant’s auxiliary spousal benefits and assessed an
overpayment.
3. BACKGROUND
On January xx, 20xx, Claimant applied for auxiliary spousal benefits on NH’s earnings
record. She also applied for child’s insurance benefits on NH’s earnings on behalf
of her three children with NH.[1] Claimant indicated that a clergyman or public official in the Dominican Republic
married her and NH on July x, 19xx.
[1]On July xx, 20xx, NH applied for disability insurance benefits (DIB), alleging disability
beginning on July x, 20xx. In his application, he indicated that he married Claimant
on July x, 19xx, in the Dominican Republic. The agency granted NH’s application on
January x, 20xx. On May xx, 20xx, the NH’s sister, applied to be NH’s representative
payee. xx indicated that NH resided with her in Miami, Florida, and that NH was “no
longer with his wife, [Claimant].”
On January xx, 20xx, NH married xx in Santo Domingo, Dominican Republic.[2] Ms. xx applied for auxiliary spousal benefits on the NH’s earnings record on October
xx 20xx. That same day, Ms. xx additionally applied for child’s insurance benefits
on behalf of her two children based on the NH’s earnings record. In connection with
this application, NH submitted evidence of a Dominican Republic divorce decree purportedly
showing that he and Claimant divorced in 20xx. The Santo Domingo, Dominican Republic
Civil Registry issued the decree on October xx, 20xx.[3] According to the decree, NH became divorced from Claimant as of August xx, 20xx.
The Dominican Republic Civil Registry recorded the divorce decree on November x, 20xx.
[2]The agency translated the marriage certificate from Spanish on November x, 20xx.
[3] The agency translated the divorce decree from Spanish on April x, 20xx.
After Ms. xx applied for benefits, the agency retroactively terminated Claimant’s
auxiliary spousal benefits for the period from January 20xx through December 20xx
and assessed an overpayment against her. Claimant disputes that she was divorced from
NH and alleges she was not aware of the alleged divorce until Ms. xx applied for spousal
benefits.
NH and Claimant were born in the Dominican Republic. They became citizens of the United
States before NH applied for benefits. From at least the time of NH’s 20xx DIB application
through the present, NH and Claimant have resided in Miami, Florida. Claimant submitted
tax returns that indicate she has not established residency outside the United States
since at least 20xx, when she applied for spousal benefits. Additionally, since he
filed his DIB application, NH did not report to the agency that he left the country
or established residency elsewhere.[4]
[4] Although he did not inform the agency that he left the country, Ms. xx submitted
a marriage certificate in connection with her application for auxiliary benefits that
indicates NH went to the Dominican Republic in 20xx to remarry.
4. DISSCUSSION
A. Federal Law
A claimant is entitled to spousal benefits under Title II of the Social Security Act
(Act) if, among other things, she is the wife or deemed wife of an insured individual
who is entitled to disability benefits. 42 U.S.C. §§ 402(b), 416(a)(1), (b); see
20 C.F.R. § 404.330 (2020).[5] For a claimant to establish she is a wife, the claimant bears the burden of proving
she is in a valid marital relationship with the insured and is therefore the insured’s
spouse. See20 C.F.R § 404.330(a).
Claimant’s eligibility for auxiliary spousal benefits for the period from 20xx through
20xx hinges on the validity of the foreign divorce decree NH provided to the agency,
as discussed above. The agency presumes a divorce is valid if granted by the court
in whose jurisdiction at least one of the parties was domiciled at the time of the
divorce. Program Operations Manual System (POMS) GN 00305.170A.1. Claimant, who is contesting the legitimacy of the divorce decree, has provided evidence
that she is domiciled in Miami, Florida. Moreover, NH has not provided any evidence
showing that he was domiciled in the Dominican Republic at the time of the divorce.
If a court in a foreign country grants a divorce and at least one of the parties was
not domiciled there as required, SSA must question the validity of that foreign divorce.
POMS GN 00305.170A.3b. In addition, when “another claimant has filed as the spouse of the worker by a later
marriage,” the agency requires further development to resolve any question about the
validity of the divorce. POMS GN 00305.170B.1a. Thus, when another claimant, Ms. xx filed as a spouse of NH by a later marriage,
the POMS require further development.[6] POMS GN 00305.170B.1a. The relevant law in determining whether the divorce between NH and Claimant is valid
is the law of the state where NH was domiciled when Claimant applied for benefits.
See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.005B.
[5]All subsequent references to 20 C.F.R. are to the 2020 edition.
[6] A collateral issue may arise regarding whether Ms. xx might be eligible for spousal
benefits as a spouse or a deemed spouse. If a claimant cannot establish her status
as an insured’s wife under state law per 42 U.S.C. § 416(h)(1)(A), she may be eligible
for benefits based on a deemed valid marriage. 42 U.S.C. § 416(h)(1)(B); see 20 C.F.R. § 404.346; see
also POMS GN 00305.005A (in determining whether a claimant qualifies as a spouse under the Act, consider
all of the following types of marriages: valid ceremonial or common-law marriage;
invalid marriage that permits a spouse to inherit under state intestate personal property,
e.g. putative; custom marriage; or deemed marriage). For a claimant to establish she
is a deemed wife, she must prove she went through a marriage ceremony in good faith
with the insured that would have resulted in a valid marriage except for a legal impediment.
See42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346, 404.704, 404.727. A legal impediment
includes one that results because a previous marriage had not ended at the time of
the alleged ceremonial marriage. See42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346. However, the agency must further
develop the record to determine whether Ms. xx went through the 20xx marriage ceremony
with NH in good faith. See20 C.F.R. § 404.346; see also42 U.S.C. § 416(h)(1)(B).
B. Florida Law
NH and Claimant have been domiciled in the state of Florida since at least 20xx, when
Claimant first applied for spousal benefits; thus, Florida law applies. See 42 U.S.C. § 416(h)(1)(A)(i). “Once a marriage is shown to have been ceremonially
entered into it is presumed to be legal and valid.” Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987) (citing Grace v. Grace, 162 So. 2d 314, 317 (Fla. Dist. Ct. App. 1964)). Otherwise, it is well established
that Florida has a presumption of validity that 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, 728 (Fla. 1960); see also POMS PR 05115.011. To overcome the presumption of the validity of the last marriage, (NH’s marriage
to Ms. xx), there must be some evidence showing that the previous marriage was not
dissolved by death or divorce.
When a foreign country enters a divorce decree, Florida courts have discretion in
recognizing and giving it effect, as “a matter of ‘comity.’” Popper v.
Popper, 595 So. 2d 100, 102-03 (Fla. Dist. Ct. App. 1992) (citations omitted). Florida’s
“well-established principles of comity suggest that . . . [Florida courts] should
generally recognize the decisions of a foreign court.” Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013, 1016 (Fla. Dist. Ct. App. 2008) (emphasis supplied). To apply comity,
the record must show the foreign judgment had the elements supporting the divorce
as if obtained in the state of Florida. Thus, “the grounds relied upon for divorce
must be sufficient under Florida law[—]the petitioning party must satisfy the jurisdictional
requirements relating to residency or domicile, and basic due process and notice requirements
must be met.” Popper, 595 So. 2d at 103; see
alsoNahar v. Nahar, 656 So. 2d 225, 229 (Fla. Dist. Ct. App. 1995). The Florida statute provides:
Before enforcing a judgment or order of a court of a foreign country, a court must
review the judgment or order to ensure that it complies with the rule of comity. A
judgment or order of a court of a foreign country is not entitled to comity if the
parties were not given adequate notice and the opportunity to be heard, the foreign
court did not have jurisdiction, or the judgment or order of the foreign court offends
the public policy of this state.
Fla. Stat. Ann. § 61.0401(3) (West 2014). “Florida courts will not recognize a foreign
nation’s divorce decree unless at least one of the spouses was a good faith domiciliary
of the foreign nation at the time the decree was rendered.” In re Estate of
Schorr, 409 So. 2d 487, 489 (Fla. Dist. Ct. App. 1981).
C. Dominican Republic Law[7]
[7] We based our Dominican Republic law discussion of on information received from the
Law Library of Congress. Gustavo Guerra, Report for the U.S. Social Security Administration,
Dominican Republic: Validity of Divorce Decree in the Dominican Republic, LL File
No. 2020-019066 (June 2020) (Law Library of Congress Report).
NH duly registered the divorce decree in the Dominican Civil Registry. Nullifying
civil status documents, such as the divorce decree obtained by NH, and or taking any
action that may modify the civil status of individuals is strictly reserved to Dominican
courts. See Jose Miguel Vazquez Garcia, Manual sobre las actas
y acciones del estado civil303 (2007); see
also¿Cuál es el procedimiento de las Sentencias de nulidad de
Actos del Estado Civil?, Junta Central Electoral, https://perma.cc/3VB3-HZX4 (website of the Dominican Civil Registry, last visited June 10, 2020). Thus, the
validity of this divorce decree is a fact-specific, case-by-case question for the
Dominican court itself.
Dominican divorce law requires that a divorce for cause be filed in the court of the
judicial district where either party resides, with a preference to file in the district
where the defendant to the divorce proceeding resides. Ley 1306-Bis, art. 3, Gaceta
Oficial No. 5034, June 12, 1937, as amended, https://perma.cc/S7TV-CXEW (last visited June 10, 2020). The law also requires the plaintiff filing a divorce
for cause, here NH, to give notice to the defendant. Id. at art. 4.
In reviewing NH’s divorce decree, the Senior Foreign Law Specialist from the Library
of Congress determined that the divorce was “for cause.” Law Library of Congress Report,
at 1.
D. Analysis
While NH presented SSA with a divorce decree from the Dominican Republic in 20xx,
the relevant law in determining whether the divorce between the NH and Claimant is
valid is the law of the state where NH was domiciled when Claimant applied for benefits—Florida
law. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.005B.
As a matter of comity, a Florida court would not recognize the Dominican Republic
divorce decree as valid in this matter because the details surrounding the foreign
divorce decree are insufficient to establish a valid divorce in the state of Florida.
SeePopper, 595 So. 2d at 103. First, the decree does not meet Florida’s jurisdictional requirements—neither
NH nor Claimant were domiciled in the Dominican Republic in 20xx for a period of six
months, when the divorce was allegedly decreed and recorded. See Fla. Stat. Ann. § 61.0401(3); In re Estate of Schorr, 409 So. 2d at 489 (stating Florida will not recognize a foreign divorce decree unless
at least one party was domiciled in the foreign country at the time the foreign country
issued the divorce). In fact, a Florida court has ruled in a case with facts similar
to the ones presented here. Specifically, the Florida court declined to recognize
the validity of a Dominican Republic divorce decree because plaintiff was not a resident
of the Dominican Republic for a period of six months before applying for the divorce
there. Lopes v. Lopes, 852 So. 2d 402, 406 (Fla. Dist. Ct. App. 2003) (dicta in dissent; dissenting on
other grounds); Fla. Stat. Ann. § 61.021 (West 2020).
Second, the NH’s notice to Claimant was insufficient for a Florida court to find the
divorce valid. SeePopper, 595 So. 2d at 103 (holding that basic due process and notice requirements must be
met); see
also Fla. Stat. Ann. § 61.0401(3) (judgment of a foreign court is not entitled to comity
if the parties were not given adequate notice). Claimant contends that she was unaware
of the divorce before 20xx, when Ms. xx applied for spousal benefits and NH produced
the Dominican Republic divorce decree. This contention indicates NH did not give adequate
notice to Claimant before he sought a divorce “for cause.” The fact that the decree
itself indicates that the divorce occurred in August of 20xx further supports Claimant’s
contention. When Claimant applied for spousal benefits in January of 20xx, after the
date of the alleged divorce, she indicated that she and the NH had been married since
19xx.
Third, while not as dispositive, it appears that the divorce decree would be invalid
under the law of the Dominican Republic. A Dominican court would have to analyze the
specifics of the divorce decree in question to make a definitive finding as to its validity, a finding that remains a fact-specific question for the
courts of that country. See Jose Miguel Vazquez Garcia, Manual
sobre las actas y acciones del estado civil303 (2007); see
also¿Cuál es el procedimiento de las Sentencias de nulidad de
Actos del Estado Civil?, Junta Central Electoral, https://perma.cc/3VB3-HZX4 (website of the Dominican Civil Registry, last visited June 10, 2020). As discussed
above, a divorce “for cause” in the Dominican Republic requires the plaintiff file
the action in the judicial district where either spouse resides, and the plaintiff
must give adequate notice to the defendant of the divorce proceedings. Ley 1306-Bis,
arts. 3 & 4, Gaceta Oficial No. 5034, June 12, 1937, as amended, https://perma.cc/S7TV-CXEW (last visited June 10, 2020). Neither party resided in the Dominican Republic at
the time of the 20xx divorce, and Claimant maintains NH never notified her of the
divorce.
5. CONCLUSION
The Dominican Republic divorce did not terminate NH and Claimant’s marriage. Therefore,
the agency improperly terminated Claimant’s auxiliary spousal benefits and incorrectly
determined that it overpaid her.