QUESTION PRESENTED
               You asked whether the Mexican divorce obtained by J~ (the NH), to dissolve his marriage
                  to A~ (A~) is valid and, as a result, whether his subsequent marriage to P~ (P~) entitled
                  P~ to spousal benefits on the NH’s record.
               
                
               OPINION
                
               Based upon the evidence you provided, the Mexican divorce decree is invalid, and the
                  NH and A~ remain married. As a result, the NH’s marriage to P~ is void, rendering
                  her not entitled to spousal benefits on the NH’s record. However, P~ may meet the
                  requirements for benefits as a deemed spouse and you may wish to further develop the
                  record on this issue.
               
               BACKGROUND
               The NH married A~ in 1956. In 2000, he began receiving Retirement benefits on his
                  account. In May 2000, A~ filed for Auxiliary Spouse benefits, and currently receives
                  such benefits on the NH’s account.
               
               The evidence provided indicates that the NH married P~ on September XX, 2012 in New
                  York State.[1] In August 2014, P~ filed for Auxiliary Spouse benefits on the NH’s record. With her
                  request for benefits, P~ submitted purported proof of a Mexican divorce between the
                  NH and A~ dated June XX, 2012 (translation in file). The decree also indicates that
                  the NH was present in Mexico and appeared before the court, represented, in the divorce
                  action. The decree also indicates that A~ was not present at the divorce proceeding
                  and states that although she was notified of the divorce proceeding pursuant to Mexican
                  law she failed to respond within the granted legal term.
               
               ANALYSIS
               Under the Social Security Act (Act), the relevant law in determining whether the divorce
                  between the NH and A~ is valid is the law of the state in which the NH was domiciled
                  when the claimant (P~) applied for benefits. See Section 216(h)(1)(A) of the Act; 42 U.S.C. § 416(h) (1) (A); POMS GN 00305.170A.2. As the NH was domiciled in the State of New York when P~ applied for benefits, New
                  York law governs as to the validity of the divorce.
               
               New York State Law
               New York State will recognize a foreign divorce (comity) provided that the “jurisdiction
                  of the foreign tribunal [was] predicated upon the consent of both parties and residency, rather than domicile, [was] established by statutory
                  ‘brief contact’ through the appearance of one of the parties.” Kushnick v. Kushnick, 763 N.Y.S.2d 889, 892 (N.Y. Sup. Ct. 2003) (citations omitted) (emphasis added);
                  see also PR 06-323 (explaining that comity will be afforded where there was consent of both
                  parties and brief contact by at least one party). Thus, if both parties consent to
                  the foreign jurisdiction, and one party physically appears, establishing brief contact,
                  New York will recognize the divorce. Id.
               Here, although the NH established “brief contact” by appearing before the Mexican
                  court, New York State law also requires that each party consent to the jurisdiction.
                  Kushnick, 763 N.Y.S.2d at 892. The NH claims, and the divorce decree states, that A~ was provided
                  notice of the proceedings as prescribed by Mexican law, and did not contest the divorce,
                  but there is no evidence that she consented to the divorce. With no showing that A~
                  consented to the foreign court’s jurisdiction, the NH’s brief contact with the Mexican
                  court is not sufficient. New York courts would not afford comity in this case, and
                  the divorce is not valid under New York State 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 997,100 (2d Cir. 1996). However, the presumption is not a rule of law, but
                  a rule of fact. Grabois v. Jones, No. 94 Civ. 2070, 1998 U.S. Dist. LEXIS 4567, *20 (S.D.N.Y. Apr. 3, 1998). Because
                  in New York “a marriage is 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), “if the facts clearly indicate that the
                  first marriage was not resolved, then the presumption will be overcome.” Grabois, 1998, U.S. Dist. LEXIS 4567, *20. Thus, because the first marriage has not ended,
                  the NH’s marriage to P~ is void.
               
               Deemed Marriage
               Nonetheless, regardless of state law, the Act permits the Commissioner to find that
                  a marriage is valid if she is satisfied that an applicant entered the marriage in
                  good faith 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. Section 216(h)(1)(B)(i) of the Act, 42 U.S.C. §
                  416(h)(1)(B)(i), 20 C.F.R. § 404.346(a). A legal impediment includes an impediment
                  which results because a previous marriage had not ended at the time of the ceremony.
                  20 C.F.R. § 404.346(a). Here, there was a legal impediment to P~’s marriage to the
                  NH. P~ had knowledge of the prior marriage. However, it is not clear whether she had
                  knowledge that the Mexican divorce would not be recognized as valid. You may wish
                  to further develop the record as to whether P~ meets the definition of a deemed spouse.
               
               CONCLUSION
               For the reasons stated above, we conclude that that the divorce was invalid, that
                  A~’s marriage to NH remains valid, and that based upon the evidence provided, it is
                  inconclusive whether P~ can be considered a deemed spouse.