A Mexican divorce between two parties neither of which is domiciled in Mexico would not be recognized as valid by the Courts of Arizona. Although a Mexican divorce is found to be invalid, a claimant who sought the divorce is estopped from contesting the invalidity of the divorce. However, for SSA purposes we will consider the divorce a final divorce and the claimant the surviving divorced wife or surviving divorced husband if he/she otherwise qualifies for widow(er)'s benefits.

QUESTION

You have asked whether Gertrude D~ would be entitled on the record of Philip D~ as either a surviving divorced spouse or a widow.

SUMMARY OF EVIDENCE

Gertrude D~ was born on December 30, 1924. On October 10, 1948, she and Philip D~, the wage earner, were married in the State of New York. According to the claimant, she went to Juarez, Mexico to get a divorce from the wage earner. A lawyer in New York arranged the divorce. Although the wage earner did not physically go to Juarez, Mexico, he purportedly was aware of the divorce. Neither the claimant nor the wage earner were residents of Mexico at the time of the divorce. Neither one ever remarried. On January 14, 2004, the wage earner died domiciled in Phoenix, Arizona.

On October 4, 2006, the claimant filed for benefits as a surviving divorced spouse. She no longer has a copy of the divorce decree, and the New York attorney who purportedly helped her obtain the divorce is deceased. Further, the Foreign Service Post could not find any record of a divorce in Juarez, Mexico, between the claimant and the wage earner from 1955 through 1965.

ANALYSIS

An individual may qualify for Title II widow's benefits as a surviving divorced spouse if he or she was married to the wage earner for at least ten years prior to the date their divorce became final; he or she is at least 60 years old or at least 50 years old and has a disability as defined by the Social Security Act; and is unmarried (or married under circumstances not applicable here). Social Security Act § 216(d), 42 U.S.C. § 416(d); 20 C.F.R. § 404.336 (2006); POMS

RS 00207.001. The determination of the claimant's marital status is governed by the laws of Arizona, which is the state where the wage earner was domiciled at the time of his death. Social Security Act § 416(h)(1)(a)(i), 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345; POMS GN 00305.170(A)(2).

The claimant has the burden of proving that she is divorced from the wage earner. 20 C.F.R. § 404.336. Because neither the claimant nor the wage earner resided in Mexico at the time of the divorce, the divorce would be found invalid in Arizona. See Unruh v. Industrial Commission, 301 P.2d 1029, 1031 (Ariz. 1956) ("mail order" Mexican divorce invalid where neither party resided in Mexico at the time); see also Cross v. Cross, 381 P.2d 573, 574 (Ariz. 1963) (Mexican court did not have jurisdiction to adjudicate the divorce therefore spouse secured a patently invalid Mexican divorce).

Although the claimant was not validly divorced from the wage earner, she is estopped from challenging the invalidity of the divorce because she sought the Mexican divorce. See Unruh, 301 P.2d at 1031 (an individual cannot question the validity of a divorce when he or she actively participated in securing the divorce); Green v. Green, 269 P.2d 718, 720 (Ariz. 1954); see also POMS GN 00305.175(A)(2) (an individual may be estopped to deny the validity of a divorce if he or she was a plaintiff in the divorce action).

Where, under state law, the claimant is estopped to assert the invalidity of a divorce from the wage earner, SSA will not consider the claimant to be the wage earner's spouse. POMS GN 00305.180(A)(3), which references GN 00305.180(C)(2). SSA will, however, "consider the divorce (for Social Security purposes only) a final divorce" and the claimant the surviving divorced spouse if she otherwise qualifies for widow's benefits. Id.; see also Memorandum from Regional Chief Counsel, San Francisco, to Center for Programs Support, Region IX, Validity of Purported Mexican Divorce (June 28, 2005). Here, the claimant is unmarried, is 82 years of age, and was married to the wage earner for ten years before the divorce.

DIVORCE -- EFFECT OF VACATION OF DECREE -- ARIZONA

Where the claimant petitions a court of record or of general jurisdiction to set aside a Decree of Dissolution of Marriage that court's subsequent action in granting or refusing an application to vacate is within the Jurisdiction of the Court and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. (D~, Gary D., ~- RA IX (F~) to RC, 12/10/82)

On April 15, 1982 a (default) "Decree of Dissolution of Marriage" dissolving the marriage of the wage earner, Gary D. D~, and the claimant, Renita D~, was entered in the Superior Court of Graham County, Arizona. The wage earner died on December 7, 1980. Renita D~ petitioned the Graham County Superior Court to vacate the decree of dissolution of marriage on January 22, 1981. The same day the Court ordered that the default judgment be set aside and the decree of dissolution be vacated. You inquired whether the Graham County Superior Court's January 22, 1981, order invalidates the D~ April 1980 divorce.

As a general rule, courts of record or of general jurisdiction have the power, inherent or statutory,1_/ to vacate or set aside their own judgments. 46 Am. Jur.2d Judgments §679 (1969). The fact that the default judgment was entered against Gary D~ in an action brought by Renita, does not preclude Renita from obtaining relief from the judgment. See Annoto, 40 A.L.R.2d 1127, 1131 (1955). The action of a trial court in granting or refusing an application to vacate a judgment is within the judicial. discretion of the court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. See Union Oil Co. of California v. Hudson Oil Co., Inc., 131 Ariz. 285, 640 P.2d 847 (1982).

The "facts" supporting the petition to vacate, as they were represented to the court,2_/ were: that Gary contacted an attorney regarding vacating the decree on the grounds that he and Renita had reconciled after the original petition for divorce was filed and that he was led to believe that the petition for divorce had been dismissed; that Renita and Gary had decided that it was less expensive to remarry than to employ an attorney to vacate the default dissolution decree; that Gary and Renita completed an application for marriage; and that Gary died before the marriage ceremony occurred.

The latter two points were verified by the resident office.3_/ Assuming that the other representations by Renita are true, the trial court apparently had sufficient justification to vacate the decree of dissolution of the marriage.

A state court decree issued upon an ex parte application (as was Renita D~ petition to vacate the decree of dissolution of marriage) need not be followed by the Secretary. See our opinion re: John B. D~, September 24, 1982. If the decree is not inconsistent with state law and facts known to SSA, however, it should generally be followed. Our analysis of the published Arizona cases 4_/ involving review of trial courts' decisions to grant or refuse an application to vacate a judgment of dissolution of marriage, leads us to conclude that a reviewing court would find that the trial court in the instant case did not abuse its discretion in vacating the dissolution decree. Thus, you should treat the January 22, 1981, decree as valid and binding on SSA. A judgment which is vacated is destroyed in its entirety 46 Am. Jur.2d Judgments §681. Therefore, Renita D~ would qualify as the wage earner's widow under state law and, hence, for benefit purposes under the Act.

1/ See, e.g., Ariz. R. C~ v. P. 60(c) which sets forth some of the grounds on which a court may grant relief from a judgment or order. This rule was held to apply to divorce decrees in Blair v. Blair, 48 Ariz. 501, 62 P.2d 1321 (1936). 2_/ See paragraphs I-II in the petition to vacate the dissolution decree. 3_/ See the "Affidavit for Marriage License" which was obtained at our request and has been placed in the claims file. 4_/ See e.g., Blair v. Blair, cited above; Damiano v. Damiano, 83 Ariz. 360, 321 P.2d 1027 (1958); Judge v. Judge, 18 Ariz. App. 320, 501 P.2d 948 (1982).