A surviving divorced wife may qualify for WIB on the insured individual's earnings record if, in relevant part, she is not married. When we determine whether the claimant is married to another individual, we look to the State law of the State in which a number holder was domiciled when he died to determine the claimant's marital status to another individual. However, in determining a claimant's marital status, SSA generally looks to the deemed-marriage provisions before determining the legality of a relationship under State law. 

In this case, SSA has concluded the relationship between Claimant and her spouse satisfies the criteria for a deemed marriage under Social Security law. The Claimant did not know of the possible legal impediment at the time of the marriage ceremony and believed her marriage to her spouse was valid. Therefore, Social Security Administration (SSA)  deems the claimant's marriage to another individual valid. The claimant is not unmarried for determining her eligibility for WIB on the number holder's earnings.

QUESTION

You asked whether a claimant, who married another individual in Arkansas on July 17, 1986, but whose Illinois divorce from the number holder did not become final until August 15, 1986, is unmarried for determining the claimant's eligibility for widow's insurance benefits (WIB) on the number holder's earnings record as a surviving divorced wife of the number holder, who died while domiciled in Florida.

OPINION

The claimant is not unmarried for determining her eligibility for WIB on the number holder's earnings record because the Social Security Administration (SSA) would deem the claimant's marriage to another individual valid.

BACKGROUND

According to the information provided, R~ (Claimant), who was born on November, married R~, the number holder (NH), on August 10, 1957, in Illinois.  On April 23, 1985, Claimant filed a petition for divorce in an Illinois court, but the court dismissed the petition on December 2, 1985. On June 26, 1986, NH filed a petition for divorce in an Illinois court.  Court records show Claimant attended pre-trial conference in July 1986, but Claimant alleges she moved to Arkansas after filing for divorce and did not return to Illinois for any proceedings. Claimant reported her attorney told her in July 1986 that he had taken care of the divorce. On July 17, 1986, when she was forty-seven years old, Claimant married another individual, M~, in Arkansas, purportedly based on her attorney's statements in July 1986. On August 15, 1986, the Illinois court issued a judgment of divorce. 

On May 20, 2014, NH died while domiciled in Florida. Claimant reported she did not learn of the date when her divorce from NH had become final until she secured certified copies of the divorce decree in August 2014.  On September 23, 2014, Claimant applied for WIB on NH's earnings record as NH's surviving divorced wife. Claimant reported in her application that she was married to M~. Claimant currently resides in Arkansas and receives old-age insurance benefits on her own earnings record. SSA has concluded the relationship between Claimant and M~ satisfies the criteria for a deemed marriage under Social Security law.

DISCUSSION

A claimant may be eligible for WIB if she is a surviving divorced wife of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.336(a) (2014). ^[1] A claimant may qualify as a "surviving divorced wife" of an insured individual if her marriage to the insured individual was valid under the laws of the State where he was domiciled when he died. See Act § 216(d)(2), (h)(1)(A)(i); 20 C.F.R. §§ 404.336(a)(1), 404.345. If the claimant is not (and is not deemed to be) the surviving divorced wife of the insured individual under State law, but the claimant establishes to the satisfaction of the Commissioner that she in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the claimant at the time of such ceremony, would have been a valid marriage, and the claimant and the insured individual were living in the same household when the insured individual died, then the purported marriage shall be deemed a valid marriage for determining the claimant's eligibility for WIB. See Act § 216(h)(1)(B)(i); 20 C.F.R. §§ 404.336(a)(1), 404.346; Program Operations Manual System (POMS) GN 00305.055A.1. A surviving divorced wife may qualify for WIB on the insured individual's earnings record if, in relevant part, she is not married. ^[2] See Act § 202(e)(1)(A); 20 C.F.R. § 404.336(e).

Claimant's marriage to, and divorce from, NH are not at issue in this matter. The evidence provided indicates Claimant was validly married to NH in Illinois and their marriage ended in divorce on August 15, 1986, in Illinois.  The issue in this matter is whether Claimant's marriage to M~ is a valid marriage that would render Claimant married for determining her eligibility for WIB on NH's earnings record as a surviving divorced wife of NH.

The Act and regulations do not expressly address which law applies to determine a claimant's marital status to an individual other than the number holder. However, subsumed within the question of whether a claimant is entitled to WIB on the number holder's earning record as a surviving divorced wife is the question of whether the claimant was married to another individual.  Therefore, we infer from the Act and regulations on which State law determines marital status that the law of the State in which a number holder was domiciled when he died would also determine the claimant's marital status to another individual. See, e. g., Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983) (stating "appropriate criterion for evaluating a claimant's eligibility for widow's insurance benefits is determined according to the law of the insured's domicile at the time of his death" and analyzing claimant's marital status at the time of number holder's death under the law of the number holder's domicile).  Similarly, we infer from the Act and regulations that if the claimant is not (and is not deemed to be) validly married under State law, SSA may determine the claimant's marital status to another individual using the Act and regulatory provisions regarding federal deemed marriages. See Act § 216(h)(1)(B)(i); 20 C.F.R. §§ 404.336(a)(1), 404.346.

In determining a claimant's marital status, SSA generally looks to the deemed-marriage provisions before determining the legality of a relationship under State law. See POMS GN 00305.055C.1. SSA has concluded the relationship between Claimant and M~ satisfies the criteria for a deemed marriage under Social Security law. Claimant provided an Arkansas marriage license and certificate showing she and M~ went through a marriage ceremony resulting in a purported marriage. The evidence also indicates Claimant went through the marriage ceremony with M~ in good faith, not knowing of the possible legal impediment.  Claimant reported her attorney told her in July 1986, before she married M~, that he had taken care of the divorce. Claimant also reported she did not learn of the date when her divorce from NH had become final until in August 2014, more than thirty years after she went through the marriage ceremony with M~. Thus, Claimant did not know of the possible legal impediment at the time of the marriage ceremony and believed her marriage to M~ was valid. Finally, nothing in the record indicates Claimant and M~ were not living in the same household. Therefore, based on Act § 216(h)(1)(B)(i), 20 C.F.R. § 404.346, and POMS GN 00305.055, we concur with SSA's determination that the relationship between Claimant and M~ satisfies the criteria for a deemed marriage under Social Security law.

CONCLUSION

Claimant is not unmarried for determining her eligibility for WIB on NH's earnings record. 

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: ________________

 Brian C. Huberty

 Assistant Regional Counsel

Is a claimant the widow of the deceased number holder (NH) for widow’s insurance benefit (WIB) purposes on the deceased NH’s record when the claimant alleges her divorce from the NH is not valid?  The claimant and NH were married on May 6, 1967 in Tennessee. The claimant filed for divorce, and on November 30, 1967, less than one year after they were married, a Tennessee court issued an order divorcing Claimant and NH. The claimant and NH subsequently married other individuals.  The claimant alleges she contacted the circuit court and was informed the divorce was not valid because of errors on the court’s order. There is no authority suggesting the Tennessee court would find the divorce decree invalid based on what appears to be nothing more than a typographical error. Claimant has not rebutted the presumption that her second marriage and NH’s second marriage were valid.  Since the Tennessee divorce is valid under Florida law and occurred after less than 1 year of marriage, claimant does not appear to be eligible for divorced spouse benefits. 

QUESTION

You have asked whether the claimant is the widow of the deceased number holder for determining the claimant’s eligibility for widow’s insurance benefits (WIB) on the deceased number holder’s earnings record where the claimant alleges her divorce from the number holder was not valid.

OPINION

The claimant’s divorce from the number holder is valid under Florida law. Therefore, the claimant is not entitled to WIB on the deceased number holder’s earnings record.

BACKGROUND

Based on the information provided, we understand the facts to be as follows.  Z~ (Claimant) married Ronald , the number holder (NH), on May 6, 1967, in Hardin County, Tennessee.  Claimant reported she and NH lived together for three months in Nashville, Tennessee (Davidson County), after the marriage ceremony. Claimant filed for divorce in Hardin County Circuit Court, and on November 30, 1967, less than one year after they were married, the court issued an order divorcing Claimant and NH. The court’s order states NH “turned [Claimant] out of doors, refused and neglected to provide for her, [and] has abandoned her.” According to the court’s order, NH left Claimant in “June 1966” and had not been seen since that time.  The order also indicates Claimant and NH had no children. 

According to Claimant, she married another individual after her divorce from NH. Claimant reported her second marriage ended in divorce, but she did not provide evidence of this divorce. Claimant also reported NH remarried. NH’s death certificate states he died on November 30, 2002, while residing in Florida. His death certificate also states NH was married and lists Laura as his surviving spouse.

Claimant alleges her divorce from NH was invalid because: (1) the circuit court’s order dissolving her marriage to NH identified her residence as Hardin County, but she lived in Davidson County at the time of the divorce; (2) the court’s order listed the NH’s residence as New York, but according to Claimant, he also lived in Davidson County; and (3) the court’s order states Claimant and NH were separated in “June 1966,” even though they did not marry until May 1967. Claimant alleges she contacted the circuit court and was informed that, due to the errors in the court’s order, the divorce was not valid. Claimant subsequently filed for WIB on NH’s earnings record.

Claimant also provided evidence showing she resided in Nashville, Tennessee, prior to her marriage to NH and that she obtained a Social Security card that reflected NH’s last name while residing in Nashville, Tennessee. Claimant does not challenge the court’s finding that she was a resident of Tennessee at the time of the divorce.

DISCUSSION

A claimant may be eligible for widow’s insurance benefits if she is the widow of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a). All regulatory citations refer to the 2013 Code of Federal Regulations.   A claimant may qualify as the widow of an insured individual if she was married to the insured individual for a period of not less than nine months immediately before he died. See Act § 216(c)(1)(E); 20 C.F.R. § 404.335(a)(1). A claimant for WIB also must show she was validly married to the insured individual under the laws of the State where the insured individual was domiciled when he died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345. Additionally, the Programs Operations Manual System (POMS) provides, “[a] divorce will be held invalid if it is found not valid according to the law of the worker’s domicile at the time of his/her death.”  POMS GN00305.170.A.2. NH’s death certificate indicates he was a resident of Florida when he died. Therefore, we look to Florida law to determine if Claimant was married to NH at the time he died.

A Florida court generally must give full faith and credit to an order or judgment issued by a Tennessee court. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738; Baker by Thomas v. General Motors Corp., 522 U.S. 222, 231-32 (1998).  The reviewing court must determine whether the original court had jurisdiction to issue the order or judgment. See AmE~an Steel Bldg. Co., Inc., v. Davidson & Richardson Constr. Co., 847 F.2d 1519, 1521 (11th Cir. 1988); Atwell v. Atwell, 730 So. 2d 858, 860 (Fla. Dist. Ct. App. 1999) (citing Fehlhaber v. Fehlhaber, 669 F.2d 990, 994 (5th Cir. 1982)). “The law is well settled that if the court of a sister state which has jurisdiction and which then enters an erroneous decree, such decree is entitled to full faith and credit if” the court entering the decree had both subject matter jurisdiction and personal jurisdiction over the divorce action. See Taylor v. Taylor, 258 So. 2d 500, 501 (Fla. Dist. Ct. App. 1972) (emphasis added). Given that Florida courts are required to give full faith and credit to the judicial decrees of other state courts that had jurisdiction, a Florida court may not enter an order contrary to an out-of-state divorce decree without first finding that decree void. See Stewart v. Stewart, 155 So. 114, 115 (1934). In addition, in Florida, a divorce decree of any state is presumed valid on its face until it is proved invalid. Newton v. Newton, 245 So. 2d 45, 46 (Fla. 1971) (interpreting U.S. Const. art. IV, § 1). 

Based on the evidence presented, the Hardin County Circuit Court had both subject matter and personal jurisdiction to issue the divorce order. A Tennessee circuit court has subject matter jurisdiction to grant a divorce, see Tenn. Code Ann. § 16-10-108 (West 2013), and may grant a divorce if the acts complained of were committed “while the plaintiff was a bona fide resident” of Tennessee. Tenn. Code Ann. § 36-4-104(a) (West 2013). The Tennessee court order states Claimant, the plaintiff in the divorce action, resided in Tennessee, and the evidence presented by Claimant supports this conclusion.  Accordingly, a Florida court would likely find she was a “bona fide resident” of Tennessee when the acts that served as the basis for the divorce were committed, thus conferring subject matter jurisdiction on the Hardin County Circuit Court. A Florida court would also likely find the Tennessee court had personal jurisdiction over Claimant since she initiated the divorce action. Dixie Sav. Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. Ct. App. 1988) (“[I] f a party makes a general appearance and does not take issue with venue, adequacy of service of process, personal jurisdiction, or other similar matters, the courts customarily find that the party has waived its objections to these matters”) (citations omitted).  Accordingly, we believe that the Tennessee divorce is valid under Florida law.

Claimant’s allegations of error in the divorce decree do not establish that her divorce to NH was invalid. Tennessee law provides that subject matter jurisdiction is based on the state of residence of the plaintiff in a divorce proceeding, not the county of residence. Tenn. Code Ann. § 36-4-104(a) (West 2013) (emphasis added); Wiseman v. Wiseman, 216 Tenn. 702, 706 (1965). Moreover, the court need only have personal jurisdiction over one of the parties. W~, 216 Tenn. at 702. Claimant initiated the divorce proceedings while a resident of Tennessee, so the decree’s errors regarding the wife’s county of residence or the husband’s state of residence do not affect jurisdiction. Moreover, “[v] enue in a divorce case may be waived by the parties; and, if they do, and if a decree is entered in the wrong venue, the decree is valid.” Taylor v. Taylor, 903 S.W.2d 307, 308 (Tenn. Ct. App. 1995) (citing Kane v. Kane, 547 S.W.2d 559 (Tenn. 1997)). Additionally, although the decree includes an apparent a factual error regarding the date of separation, the court entered the divorce decree on an otherwise valid ground for divorce. See Tenn. Code Ann. § 36-4-101(a)(13). We found no authority suggesting a Tennessee court would find the divorce decree invalid based on what appears to be nothing more than a typographical error.

In addition, Claimant’s and NH’s later marriages to other individuals are presumed valid. See POMS GN 00305.035.A.  Florida recognizes this presumption. As explained in Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987), “[n]umerous decisions hold that the second marriage is presumed to be valid. This presumption of validity that attaches to a second marriage is one of the strongest presumptions known to the law.”  Indeed, the Florida Supreme Court has held a remarriage creates a nearly insurmountable presumption that a prior divorce is valid:

In the case of conflicting marriages contracted by the same spouse, the presumption of validity operates in favor of the second marriage.  Accordingly, the burden of showing the validity of the first marriage is on the party asserting it, and even where this is established it may be presumed in favor of the second marriage that at the time thereof the first marriage had been dissolved either by decree of divorce or by death of the former spouse, so as to cast the burden of adducing evidence to the contrary on the party attacking the second marriage.

Even in the case of conflict of presumptions arising from two marriages of the same party, the general current of authority holds that the presumption in favor of the subsequent marriage overcomes that in favor of the former.  The indulgence of this presumption necessarily means that the presumption either in favor of the validity of the former marriage or in favor of its continuance has been overcome.

Roberts v. Roberts, 167 So. 808, 809 (Fla. 1936) (citations omitted). 

To rebut this presumption, Claimant would have to “tender evidence which when weighed collectively establishes the absence of a reasonable probability that her husband actually secured the divorce.” Teel v. Nolen Brown Motors, Inc., 93 So. 2d 874, 876 (Fla. 1957). Florida caselaw indicates that Claimant could make this showing by producing a statement of no divorce from the state of Tennessee, see King v. Keller, 117 So. 2d 726, 730 (Fla. 1960), or by showing evidence of concealment of a prior marriage in the application for the second marriage, see In re Estate of P~, 470 So. 2d 48, 51 (Fla. Dist. Ct. App. 1985).  Claimant has not presented such evidence and thus has not rebutted the presumption that her second marriage and NH’s second marriage were valid. 

CONCLUSION

Based on the above, the Tennessee divorce decree is valid and would be given full faith and credit by Florida courts. In addition, Claimant’s second marriage is presumed valid under Florida law, and Claimant did not rebut the presumption.  Therefore, Claimant was not married to NH when he died and is not his widow for determining her eligibility for WIB on his earnings record. A claimant may otherwise qualify for widow’s insurance benefits if she was the surviving divorced wife of an individual who died fully insured. See Act § 202(e)(1); 20 C.F.R. § 404.336. To qualify as a surviving divorced wife, the claimant must have been married to the fully insured individual for a period of 10 years before they divorced. See Act § 216(d)(2); 20 C.F.R. § 404.336(a)(2). Since the Tennessee divorce is valid under Florida law and occurred after less than 1 year of marriage, Claimant does not appear to be eligible for divorced spouse benefits.  

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: ____________________

JEFFREY S. WILSON

Assistant Regional Counsel

The record contains evidence of a valid foreign divorce between the NH and his first wife (the claimant) as well as NH's subsequent marriages. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. Thus, NH's marriage to his last wife is presumptively valid under NY law. This presumption may be rebutted if the claimant proves by clear and convincing evidence the fact of the absence of a divorce. The NY Family Court's decision that the Cuban divorce was void should not be binding in a subsequent administrative hearing wherein it will be determined whether the claimant is the legal widow of NH. The Family Court's finding is not determinative and the claimant can rely on it only as evidence. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to NH's marriage with his last wife will continue, and she cannot receive benefits as the NH's widow.

You have asked for advice on whether a valid marriage still exists between the claimant, T~ , and the number holder, A~ ("NH"); whether the New York Family Court had jurisdiction to declare their subsequent Cuban divorce void; and thus whether T~ is the widow of A~ . As we understand the facts of this case, T~ contends that she remained the legal wife of A~ until he died because the Cuban divorce was fraudulent. Based on the factual record presented to us, T~ has not provided clear and convincing evidence that the Cuban divorce is invalid.

FACTUAL BACKGROUND

T~ R~, formerly T~ J~, had two children with A~ in Cuba: A~ Lazaro and Rosalba (Ex. 5). Both T~ and NH were natives of Cuba, and according to T~ they had an agreement to get married so they could bring their children to the United States. T~ came to Brooklyn some time in 1956 and A~ came shortly after. T~ and NH were married in New York, N.Y. on September 22, 1957 in a ceremony solemnized by clergyman, Reverend Antonio (Ex. 7). T~ and NH listed Brooklyn as the place of their residence (Ex. 7).

T~ and NH separated some time around 1960, and NH returned to Cuba while T~ remained in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May 25, 1960 (Ex. 1). The decree identifies T~, represented by "Solicitor Francisco ," as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA") explains that T~ was living in Brooklyn at the time of the divorce but sent power of attorney to Cuba (Ex. 3). L~, NH's third wife, similarly told the SSA that T~ signed away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in T~'s request for hearing T~ maintained that she is the legal wife of NH (Ex. 9). T~ denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent and denied any knowledge of the proceeding and signing her name to any consent or acknowledgment of the divorce action (Ex. 5).

On or about December 31, 1960, NH married Isabel, formerly Isabel, in Cuba (Ex. 4). They remained married for approximately twenty one years until NH brought a divorce action in Elizabeth, N.J. and the Honorable John ordered that the marriage be dissolved on September 16, 1982 (Ex. 4). Isabel remarried on March 18, 1983 to Jose and is still legally married to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's record (Ex. 12).

The record indicates that in 1963, subsequent to NH's marriage to I~ instituted a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8). In this proceeding the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, T~." The Order further directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to T~, it was not until she filed for this Order of Support that she became aware of the fraudulent divorce proceedings (Ex. 5).

The State of New Jersey Certificate of Marriage contained in the file demonstrates that NH was then married a third time on December 7, 1984 to L~ (now L~ ) in Elizabeth, N.J. (Ex. 10). NH died in Miami, Florida on April 27, 2002 (Ex. 11). The Certificate of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her statement to the SSA, L~ certified that she and NH were married and living together up until the day NH passed away (Ex. 13).

After NH's death, T~ applied for surviving spouse benefits on NH's record (Ex. 14). On or about November 29, 2002 the SSA notified T~ that she was not entitled as a wife because of NH's subsequent marriages, and she was not entitled as a divorced wife because she did not meet the duration of marriage (Ex. 14). Upon reconsideration, that determination was affirmed, reiterating that the divorce has been proven and that the marriage did not last for the requisite ten years (Ex. 14). Still, T~ maintains that she is the legal wife of NH, entitled to widow's benefits.

ANALYSIS

In examining widow's benefit claims, the SSA must look to the laws of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A) (2004). In this case, NH apparently was domiciled in Florida at the time of his death. As such, we must determine whether Florida would recognize the existence of a valid marriage between T~ and NH.Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the marriage between T~ and NH will be considered valid if it is valid under the law of New York, where the marriage occurred.

1. The Presumption of Validity Attaching to the A~-L~ Marriage:

The record indicates that NH had two other marriages subsequent to his marriage to T~. NH married his third wife, L~, in New Jersey in 1984 and remained married to her until he died in 2002. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re L~'s Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor of validity of the last marriage is stronger than the presumption that the prior marriage continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either by death or legal action). This presumption operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to L~ is presumptively valid under New York law, and she appears to be the legal widow of NH.

However, it is well established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the A~-L~ marriage may be rebutted if T~ provides evidence which, when weighted collectively, establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree, T~ must provide sufficient evidence to prove the Cuban divorce invalid in order to demonstrate that she is the widow of NH.

2. Effect of the New York Family Court's Determination:

A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a marital res subject to in rem jurisdiction, therefore a judgment determining marital status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, T~." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its face, the Family Court's decision appears to be a judicial declaration of a subsisting marriage between NH and T~, which rests upon a foundation of an invalid divorce.

a. Issue of Subject-Matter Jurisdiction

In this case, there is a question as to whether the Family Court had jurisdiction to determine that the divorce is void, and thus whether that court's finding is binding on an Administrative Law Judge deciding T~'s entitlement to widow's benefits. The Family Court, formerly known as the Domestic Relations Court, was established and the Legislature conferred such jurisdiction upon it as was essential to permit it to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act. § 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended 2001, effective 2002). In the exercise of its limited jurisdiction the Family Court is authorized to determine whether the parties are husband and wife, but such determination is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction of the subject matter of the marriage. Consequently, New York law does not recognize a Family Court's pronouncement of marital status as a "decree of a court of competent jurisdiction rendered on the merits," and such a determination is not binding on the parties in a subsequent action outside the Family Court in which there is directly involved the question of whether the same marriage exists or has been terminated. Id. at 496.

In L~, the Court of Appeals of New York held that a determination by the Domestic Relations Court of the marital status of the parties is a preliminary matter to exercising or declining jurisdiction and is not binding on the parties in a subsequent action in the Supreme Court where the existence of a valid marriage is directly involved because there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for support only, the other for an adjudication of marital status). Similarly, the Family Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent administrative hearing wherein it will be determined whether T~ is the legal widow of NH. The Family Court's decision was only incident to its finding that NH was responsible for supporting T~. Thus, the preliminary matter of the marital status in Family Court is not res judicata.

Since the jurisdiction to determine the subject of marriage, where the validity of such marriage is a primary issue, lies exclusively in the Supreme Court, the Family Court's finding is not determinative and T~ can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has exclusive subject matter jurisdiction over divorce actions).

b. Issue of Failure to Include an Indispensable Party

Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such an assertion. The noncompulsory nature of the court's judgment regarding marital status is evident with an acknowledgment that Isabel, NH's second wife to whom he was married at the time of the proceeding, was not a party to the action.

It is well-known that a court may always consider whether there has been a failure to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be "inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005). With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for a declaration of legal relations serves a legitimate purpose only where all persons who are interested in or might be affected by enforcement of such rights and legal relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R. § 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to third parties who should not be "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.

New York Courts have held that, where in an action by one spouse for a judgment declaring that a foreign divorce decree is null and void, it appears that subsequent to the procurement of the divorce the defendant married a third person, such third person must be joined as a party defendant, since that person is an indispensable party without whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y. 1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App. Div. 1945).

Here, NH was married to Isabel at the time of the Family Court's proceeding. Although the court's declaration of the nullity of the Cuban divorce related primarily to the marital status of NH and T~, it also necessarily implied that the A~-Isabel marriage was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel was a necessary and indispensable party without whom no effective judgment regarding marital status could have been rendered. Accord Bard, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all persons whose rights may be affected by the judgment there cannot be a final and complete determination of the controversy). The fact that Isabel was not a party to the action confirms that the court's finding of a surviving marriage is not binding in T~'s administrative hearing concerning her eligibility for widow's benefits. It is, thus, our opinion that the ALJ may form his own conclusion with respect to whether a marriage subsists or whether the Cuban Divorce is valid.

3. Recognition of the Cuban divorce decree

In determining whether T~ is the legal widow of NH, the issue of marital status is complicated by the contradictory evidence regarding the divorce. T~ contends that she was separated from NH for over 39 years, but was never served with divorce papers. However, NH submitted proof of the Cuban divorce when he applied for Social Security benefits. The first question to be determined is the extent to which recognition must be accorded the Cuban divorce decree in a New York court. Secondly, the possibility that the divorce may have been fraudulently obtained must be considered.

a. The Doctrine of Comity

New York courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert , AmE~an Conflicts Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce action is precluded from attacking the validity of the foreign judgment in a collateral proceeding brought in the New York courts, absent some showing of fraud in the procurement of the judgment or some showing that recognition of the judgment would violate a strong public policy of the State. See G~, 414 N.E.2d at 697-698.

In the case at bar, T~ has failed to adduce evidence demonstrating that the Cuban court did not have personal jurisdiction over her. The record includes the translation of the Cuban Decree which indicates that T~ was the plaintiff and was represented by Solicitor Francisco . Thus, her appearance, through an attorney, in the divorce action gave the Cuban court jurisdiction to grant the divorce unless such appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce decree under the doctrine of comity unless T~ can demonstrate fraud or a violation of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).

b. Demonstrating Fraud

The Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proof and evidence necessary to establish the right to benefits. 42 U.S.C. § 405(a) (2006). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708 (2006). In deciding whether evidence is convincing, the SSA will look to whether "information contained in the evidence agrees with other available evidence, including our records." 20 C.F.R. § 404.708(f) (2006).

Here, the record contains evidence of a valid divorce between NH and T~ as well as NH's subsequent marriages. This evidence conflicts with T~'s claim that she is the widow of NH as well as the determination of the Family Court that the Cuban divorce is void. Since T~ bears the ultimate burden of proving that she is entitled to benefits as NH's widow, it is her obligation to provide clear and convincing evidence that the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive. T~ has not produced any records which tend to show that she did not bring the divorce suit or that her power of attorney was unauthorized. T~, therefore, has not carried her burden of proof. Consequently, if no further evidence is submitted, the presumption of validity attaching to NH's marriage with L~ will continue, New York courts will give recognition to the divorce decree, and T~ cannot receive benefits as NH's widow.

4. Divorced Wife's Benefits

Section 202(e) of the Social Security Act provides that widow's insurance benefits may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant for a surviving divorced spouse's insurance benefit must meet several requirements: she must have been validly married to a fully insured worker for a period of at least ten years immediately preceding a final divorce; must have attained age 60, or have attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§ 402(e), 402(b)(1), 416(d)(1) (2006).

It is evident that T~ is ineligible for divorced wife's benefits. Although she meets the second two requirements - she is 85 years of age and has never been remarried - the duration requirement has not been met. The divorce occurred in 1960, less than three years after T~ and NH married. Since the marriage subsisted for less than ten years, T~ cannot receive divorced wife's benefits on NH's account.

In conclusion, on our understanding of the current factual record, T~ cannot be entitled to widow's benefits on NH's account because she has not proven through clear and convincing evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts may establish that the Cuban divorce is void. However, T~ bears the burden of proof and if no further evidence is provided she has not met her burden.

New York law states a foreign divorce will not be recognized if none of the parties were residents of the foreign country. NH's divorce from his first wife was invalid and his subsequent marriage to claimant is void. Florida looks to the jurisdiction where the marriage took place to determine its validity. Florida courts would decline to recognize the marriage as valid, thus the claimant could not inherit a spouse's share of NH's personal property if he were to die without a will.

QUESTION

When determining entitlement for L~ (Claimant) to benefits as the spouse of Florida resident Daniel (NH), should the Social Security Administration (SSA) apply any provisions of New York or California law to determine whether NH's Dominican Republic divorce from Gloria (first wife) would be recognized in Florida as a valid divorce?

ANSWER

For the reasons stated below, it is our opinion that the divorce obtained in the Dominican Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and Claimant has not presented sufficient evidence to qualify for benefits as a deemed spouse.

BACKGROUND

According to the file, NH married his first wife on October 20, 1969. NH and his first wife separated some time in 1985. On September 29, 2004, while NH resided in New York and his first wife resided in California, NH obtained a divorce in the Dominican Republic without personally appearing in the Dominican Republic or being domiciled there. NH's first wife states she never divorced NH. On December 15, 2004, NH married Claimant in New York. NH and Claimant currently reside in Florida. On June 8, 2005, Claimant filed an application seeking spouse's benefits on NH's account.

DISCUSSION

The Social Security Act (Act) provides that "an applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." § 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony 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 such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of these three methods.

1. a. 

   Claimant and NH Were Not Validly Married.

At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. It is well established in Florida that a presumption of validity 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 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. In this case, NH's first wife states she and NH never divorced.

However, once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in New York, we must look to that state's 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 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the latter marriage becomes "stronger and stronger where a substantial injustice would be created by invalidating that marriage." See G~, 89 F.3d at 100; see also Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." , 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y. 1984) (stating that "[c]hief among the equities to be considered is whether there are children of the second marriage" in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).

Here, a question remains regarding the validity of NH's divorce from his first wife, which affects the validity of his subsequent marriage to Claimant. According to New York law, "a marriage is absolutely 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). In this case, NH sought a divorce from his first wife in the Dominican Republic while residing in New York. New York law states that a foreign divorce will not be recognized if none of the parties were residents of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither NH nor his first wife resided in the Dominican Republic at the time of the divorce. Moreover, neither party personally appeared in the Dominican Republic for the divorce proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent marriage to Claimant is void. Neither Florida nor New York would look to California law to determine the validity of Claimant's marriage.

1. b. 

   Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

Claimant could also be entitled to spousal benefits upon a finding that Florida courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.

If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity. New York would not recognize the validity of the marriage of NH and Claimant. Because we believe New York would not recognize Claimant's marriage as valid, we believe that Florida courts would also decline to recognize their marriage as valid. Therefore, we further feel Florida would not find Claimant was NH's surviving spouse within the meaning of the statute.

It is our opinion that Claimant could not inherit a spouse's share of NH's personal property if he died intestate, because she was not his lawful wife. Therefore, Claimant is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A) of the Act.

1. c. 

   The Commissioner Could Not Find A Valid Deemed Marriage.

As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony 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. See § 216(h)(1)(B)(i) of the Act. Here, there was a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that Claimant had knowledge of NH's prior marriage and participated in his acquiring the foreign divorce. However, it is unclear from the records provided whether Claimant had knowledge that the foreign divorce would not be recognized as valid. Because there is insufficient evidence in the record, we are unable to determine that Claimant meets the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development may be appropriate.

CONCLUSION

Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is void, and she has not met her burden of proving she qualifies as a deemed wife.

Mary Ann Sloan

Regional Chief Counsel

By:

Jennifer Patel

Assistant Regional Counsel

Florida does not recognize the concept of "continuation of marriage". A divorce decree brings about a termination and final disposition of the marital relationship. In this case, where the couple is married to each other two different times for an aggregate amount of more than ten years, but neither marriage individually lasts for a period of ten years, the claimant would not qualify for surviving divorced spouse's benefits based on that relationship.

You have requested our opinion as to whether the concept of "continuation of marriage" is recognized under Florida law and would apply to a situation where the parties were married to one another two different times for an aggregate amount of more than 10 years. Florida does not appear to recognize "continuation of marriage."

Betty applied for surviving divorced spouse's benefits on the record of D~ (NH). She married the NH in Florida in January 1975 and they were divorced in Florida in March 1981. They remarried in Florida in March 1984 and divorced in Arkansas in April 1989. Neither was married to anyone else during the period between their marriages. Betty indicated that at their second marriage ceremony, the officiating judge advised them that they could get a "continuation of marriage" judgment that would void their divorce and make a second marriage unnecessary. The couple chose not to pursue that avenue and proceeded with their ceremonial (and legal) marriage. Betty was denied benefits as a divorced spouse on NH's record because she was not continuously married to NH for at least 10 years. 42 U.S.C. §216(d)(2); 20 C.F.R. §404.331 (2002).

Research of Florida statutes and case law did not reveal did not reveal a concept such as "continuation of marriage." A divorce decree brings about a termination and final disposition of the marriage relationship. See Bredin v. Bredin, 89 So.2d 353, 355 (Fla. Sup. Ct. 1956). Where a separate maintenance decree is obtained instead of a divorce, there is a continuation of the marriage relationship. Id. However, the facts related to us indicate that the parties obtained a divorce, not a separate maintenance decree. Accordingly, Betty would not qualify for benefits on the NH's account.

Very truly yours,

Mary Ann Sloan

Chief Counsel, Region II

By:____________

Laurie G. Remter

Assistant Regional Counsel

To receive spouse's benefits on the NH's record, the claimant must provide clear and convincing evidence that her prior husband was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If she can provide evidence sufficient to establish that her marriage to her prior husband was void, the validity of the NH's divorce from his prior spouse must be considered. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to her marriage with her prior husband will continue, and she cannot receive benefits as the NH's spouse.

Opinion:

You have asked for advice on whether a valid marriage exists between the number holder, E~, and the claimant, J~ . As we understand the facts of the case, J~ contends that her first undissolved marriage to R~ was void for bigamy based on his prior marriage to E~ , and that therefore her subsequent marriage to M~ is still valid. Based on the current factual record, we cannot draw any conclusion but have outlined possible outcomes depending on what is uncovered in further development of the facts.

Factual Background:

J~, formerly J~ , married R~ in New York on December 3, 1954 in a ceremony solemnized by clergyman, Reverend John (Ex. 1). In the December 2, 1954 Affidavit for License to Marry, R~ indicated that he had never been married and never been divorced (Ex. 2). In addition, J~ and R~ listed New York as the place of their residence. According to M~'s statement to the Social Security Administration ("SSA"), J~ and R~ had three children together (Ex. 3). There is no further information in the record regarding the duration or character of the J~-R~ marriage.

J~ attested to the City Magistrate of New York City on September 23, 1958 that R~ committed bigamy by marrying her when he was still married to E~ (Ex. 4). The record does not indicate when J~ first became aware of R~'s prior marriage to E~. R~ subsequently pled guilty on January 21, 1959 to perjury in the second degree (under New York Domestic Relations Law § 16 and punishable under New York Penal Law § 210.10) (Ex. 5).

In M~'s letter to the SSA, he stated that J~ told him she had never divorced "Alan " (Ex. 6). According to M~, J~ and he met with an attorney, Anthony , to procure a divorce for J~ in preparation for their own wedding (Ex. 3). Attorney Anthony advised them that a divorce would be unnecessary as the marriage with R~ was void because of R~'s bigamy. M~ testified that on the strength of Anthony's advice, J~ did not divorce R~ and that both he and J~ entered into their marriage believing that the marriage was legal. This is consistent with J~'s statement to the SSA that when she married M~, she was free to marry and that M~ knew it (Ex. 7).

On July 16, 1962, in her sworn Application for Marriage License, J~ listed her name as "J~ " and noted that she had never been married (Ex. 8). M~ listed the fact of his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob . in the Circuit Court of Winston County, Alabama (Id.).

As to M~'s prior marriage, your records reference a marriage between M~ and T~ September 18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham, Alabama (Ex. 9). The record does not contain copies of the marriage license or certificate. On his application for a license to marry Ellen, M~ identified only T~ as a prior wife and that she was alive at the time of the application (Ex. 10). He further listed incompatibility as the grounds for divorce and noted the date of divorce as June 2, 1958. Your records, however, contain a copy of the Report of Divorce between M~ and T~ filed with the Alabama Department of Health (Ex. 11). That report lists the date of their marriage as September 27, 1950 and the date of the final decree of divorce as June 17, 1958. The divorce decree indicated that the divorce was granted to T~ on the grounds of abandonment and that at the time of the divorce they had one child under eighteen years. The divorce decree contained no information regarding M~'s place of residence. Similarly, for T~, the divorce decree provided no information on her city or county of residence and only listed "Ala." as her state of residence. No judge's signature appears on the divorce decree. The divorce decree is signed by Dorothy , State Registrar, but the date of her signature appears to be June 19, 1995. Your records show no social security number for T~ (Ex. 9).

On July 21, 1962, M~ married J~ in Union City, New Jersey in a ceremony solemnized by Judge Frank (Ex. 8). Although they married in New Jersey, both M~ and J~ listed New York as their place of residence on the Application for Marriage License. The J~-M~ marriage produced no children, and J~ and M~ subsequently separated (Ex. 3). M~ stated that they separated in 1964 (Ex. 3), while J~ asserted that they separated in the late 1960s (Ex. 7). M~ testified that prior to his current marriage to Ellen , he consulted attorney Anthony about obtaining a divorce from J~ (Ex. 3). According to M~, told him that securing a divorce would be unnecessary as the marriage was void for J~'s bigamy in failing to divorce R~ prior to marrying M~. M~ testified that based on Anthony's counsel, he married Ellen on August 7, 1965 without first divorcing J~. Your records confirm that M~ married Ellen on August 7, 1965 in Brooklyn, New York (Ex. 9-10).

While M~ asserted that he had no further contact with J~ after their separation in 1964 (Ex. 3), J~ stated in her claim to the SSA that M~ informed her of his plans to marry Ellen (Ex. 7). J~ stated that when she told M~ to get a divorce first, he made no comment and drove off. She reported never receiving any divorce papers from M~.

M~ filed for retirement benefits in November 1991 (Ex. 3). He claims that because he knew his marriage to J~ was bigamous and "not legal," he did not list J~ on his benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that M~ listed J~ as a prior spouse, indicating that they married on June 19, 1962 and that their marriage ended on January 15, 1963 (Ex. 9). Your office has also confirmed that Ellen is in current payment status as the spouse on M~'s record. J~ has filed an application for spouse's benefits, claiming she is M~'s legal spouse. We understand from your office that M~ was residing in Florida at the time J~ filed her application.

Analysis:

In examining wife's benefit claims, the SSA will look to the laws of the State where the insured had a permanent home at the time his wife applies for wife's benefits. 20 C.F.R. § 404.344. If the spouses were validly married under State law at the time of the wife's application for benefits, the relationship requirement will be met. Id. In this case, M~ was domiciled in Florida at the time J~ filed her application for wife's benefits. As such, we must determine whether Florida would recognize the existence of a valid marriage between J~ and M~.

Under Florida law, the validity of the marriage between J~ and M~ would be evaluated with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944)(holding that in determining the validity of a marriage, reference will be made to the "law of the place where it is contracted.... And, if valid according to the law of the State where contracted, a marriage is to be regarded as valid in every other jurisdiction")(citations omitted). Thus, under Florida law, the marriage between J~ and M~ will be considered valid if it is valid under the law of New Jersey, where the marriage was contracted.

1. The Effect of the J~-R~ Marriage on the J~-M~ Marriage:

Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because J~ and M~ properly obtained and delivered their marriage license prior to having the marriage solemnized by Judge Frank, New Jersey would normally recognize that J~ and M~ entered into a valid ceremonial marriage on July 21, 1962, especially since neither J~ nor M~ instituted divorce proceedings against each other.

To establish eligibility for spousal benefits, presentation of a copy of the public record of marriage normally constitutes preferred evidence of a valid ceremonial marriage, such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709, 404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the validity of the latest of two successive marriages involving a common participant. Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN00305.035. Thus, it facially appears that J~'s marriage to M~ is presumptively valid.

The record, however, contains additional information indicating that J~ was already validly married to R~ at the time she married M~. New Jersey accepts the common law proposition that "[c]ivil disabilities, such as a prior marriage, … make the contract of marriage void Ab initio and not merely voidable." Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage is a legal nullity, a judgment of nullity is not required to render the marriage void. M~, 83 N.J.Super. at 163, 99 A.2d at 71. J~'s marriage to M~ may be void, therefore, because of J~'s possible bigamy.

Determining who has the burden of proving the validity of the J~-R~ marriage is the critical issue in this case. Although New Jersey case law furnishes a burden-shifting framework for determining the presumptive validity of subsequent marriages, the Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proofs and evidence necessary to establish the right to benefits. 42 U.S.C. § 205(a). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708. In deciding whether evidence is convincing, the SSA will look to whether "information contained in the evidence agrees with other available evidence, including our records." 20 C.F.R. § 404.708(f). Here, the record contains evidence of a valid ceremonial marriage between J~ and R~ as well as J~'s testimony that she married R~ and never divorced him. Accordingly, this evidence conflicts with the evidence of the validity of J~ and M~'s marriage, and J~ bears the burden of proving that her marriage to R~, which J~ alleges was R~'s second marriage, was void because of his bigamy.

a. The Presumption of Validity Attaching to the J~-R~ Marriage:

The record indicates that J~ married R~ in New York on December 3, 1954. Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (M~ 2003), and the marriage is solemnized by "a clergyman or minister of any religion…." N.Y. Dom. Rel. Law § 11 (M~ 2003). Because J~ and R~ properly obtained and delivered their marriage license prior to having their marriage solemnized by a clergyman, New York would normally recognize that J~ and R~ entered into a valid, ceremonial marriage on December 3, 1954.

As with New Jersey, once a ceremonial marriage has been performed, New York recognizes a strong presumption in favor of holding the latest of subsequent ceremonial marriages valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re M~'s Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that "the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued"). Furthermore, the presumption of validity of the second marriage becomes "stronger and stronger where a substantial injustice would be created by invalidating that marriage." G~, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." , 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that "[c]hief among the equities to be considered is whether there are children of the second marriage" in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).

In this case, it seems unlikely that a court would find that the balance of equities tips in favor of invalidating J~'s marriage to R~. J~ and R~ entered into a ceremonial marriage that allegedly produced three children. The presumption of validity will be particularly strong here as the legitimacy of J~ and R~'s children may otherwise be cast in doubt. Furthermore, no strong public policy would be served by permitting J~ to void her marriage to R~ in order to obtain wife's benefits from M~, a man to whom she was putatively married for only three years and with whom she had no children, and who has been married to his current wife, Ellen, for thirty-nine years. On these facts, New York will likely recognize the presumption of validity that attaches to J~ and R~'s ceremonial marriage.

J~, however, does not dispute that she participated in a marriage ceremony with R~. She contends that because R~ was previously married to another living woman at the time of their marriage, her marriage to R~ was necessarily void under New York law. New York Penal Law establishes that "a person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse." See N.Y. Penal Law § 255.15 (M~ 2003). New York Domestic Relations Law states that "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living...." N.Y. Dom. Rel. Law § 6 (M~ 2003). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).

To rebut the presumption of validity on the grounds of R~'s bigamous act, J~ must prove that, at the time of her marriage to R~, R~ and E~ had been validly married and the marriage had not terminated by annulment, divorce, or E~'s death, even though this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, J~ must establish that R~'s prior marriage to E~ was "valid" by disproving through clear and convincing evidence "every reasonable possibility which would validate" the prior marriage. S~, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence of a divorce or annulment in a diligent record search of all counties in which both parties to the first marriage have resided will suffice to rebut the presumption. Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re B’~s Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the "strong evidence" of a certified statement as to a record search constituted prima facie evidence of no record of divorce and outweighed the oral testimony of putative spouse and presentation of an uncertified divorce decree); In re L~'s Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was sufficiently rebutted on the basis of appellant's testimony that he never instituted nor was served with any dissolution proceedings; no record of divorce in a search of all five New York City boroughs in which decedent resided; and decedent's false statement on her marriage license application that she had never before been married or divorced); In re B~'s Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where there were no children, the presumption was sufficiently rebutted on showing that decedent's first husband was still alive at and after the second marriage had been entered, and that decedent had falsely declared single status in executing her application for the subsequent marriage license).

b. R~'s Indictment for Perjury and Possible Bigamy:

Based on the record, it can be reasonably inferred that R~ was initially charged with bigamy for marrying J~ while he was still married to another living woman. He was then indicted for perjury in the first degree. At the time of R~'s indictment, a conviction for perjury in the first degree required materiality to the action or matter involved. If he had been convicted of first degree perjury, then we might have assumed that R~ falsely stated in his second marriage application that he was never before married and never before divorced, and that but for his false attestation, no marriage could have been contracted between J~ and R~. R~, however, was not convicted of first degree perjury but pled guilty only to second degree perjury. In 1958, a conviction for perjury in the second degree did not require materiality to the action at hand. Because second degree perjury did not require materiality to the action, we may not assume that R~ admitted to having married E~ prior to marrying J~ and that his marriage to E~ was still valid at the time he married J~. Accordingly, J~ may not rely on R~'s guilty plea to perjury in the second degree as evidence of a valid marriage existing between R~ and E~ at the time of J~'s marriage to R~.

Thus, J~ must present clear and convincing evidence that R~ was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. Additionally, J~ must provide proof of a diligent search of all records in all counties in all countries in which E~ and R~ resided to show that the marriage was never terminated. SSA may assist her. If J~ is unable to carry her burden of proof, the presumption of validity attaching to her marriage with R~ will continue, and she cannot receive benefits on M~'s record.

2. Possible Invalidity of the M~-T~ Divorce:

Prior to his marriage to J~, the record indicates that M~ was married to, and divorced from, T~. M~ and T~, however, may not have been validly divorced. If the grant of divorce between M~ and T~ was not legitimate, then J~'s marriage to M~ would be void and she could not receive benefits as M~'s spouse. Furthermore, we note that because J~ and M~ did not reside together at the time of her application for spousal benefits, J~ may not receive benefits as M~'s deemed wife. If further development of the facts by the SSA establishes that the divorce between M~ and T~ was invalid, then J~ cannot receive benefits as M~'s spouse because his marriage to T~ was never terminated. There are no copies of a marriage certificate or application for a marriage license for M~ and T~. Although your records contain a copy of M~ and T~'s divorce decree, it is possible that the divorce decree may have been invalid, either because of jurisdictional infirmities arising from T~'s failure to establish bona fide residence in Alabama or because the divorce may have been fraudulently granted.

a. Issues of Jurisdiction

With respect to the issue of T~'s residency in Alabama, the Alabama Supreme Court has explicitly held that "Alabama courts have no jurisdiction over the marital status of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred on the courts, even with the parties' consent." Winston v. Winston, 279 Ala. 534, 537 (1966) (reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama established that "[w]hen the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved…."

In this case, there is a question as to whether T~ established a bona fide residence in Alabama when she instituted divorce proceedings against M~, given that the divorce decree provided no information on her city or county of residence and only listed "Ala." as her state of residence. And, if T~ was a resident, we do not have any information regarding the length of her residency. Although M~ noted in his application to marry E~ that T~ had served him with summons in Brooklyn, we do not have a copy of the summons. Further factual development by the SSA, especially review of the allegations regarding residence contained in the summons, should be undertaken to determine T~'s residency status at the time of the divorce proceedings.

b. Fraud:

The issue of the validity of M~ and T~'s divorce is further complicated by the possibility that their divorce decree may have been fraudulently granted by Judge M~. Charges were brought against Judge M~ in 1964 for granting over 5000 divorces to nonresidents in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972)(affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge M~'s stamped or typed name, an embossed court seal, and certification by the Register in Chancery attesting that the decree was on file and recorded in the records of the Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled and unrecorded. E~, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed the trial court's jury instruction that "if you find from the evidence that a divorce decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of Alabama was not signed by the Judge of that court and did not in some other way reflect that it was the decision of the court and was not filed or enrolled in the records of that court, then you would be justified in finding that such a decree was not a valid divorce decree." Id. at 882 (emphasis in original)(citations omitted).

The relevant facts in the record are insufficient to determine whether the M~-T~ divorce was fraudulently granted. First, M~ admitted that he did not appear in person in court. Second, the divorce decree listed T~'s residence as "Ala" but included no other information on residency for T~ or M~. Third, the divorce decree contained no signature by Judge M~. Fourth, although the divorce decree contains a signature by Dorothy , State Registrar, attesting to the embossment by official seal, the date of her signature appears to be June 19, 1995. Finally, the divorce decree, on its face, appeared to have been validly recorded in the Alabama Department of Health, Bureau of Vital Statistics. Accordingly, further research must be conducted to ascertain whether Judge M~ fraudulently granted a divorce to M~ and T~. We suggest that the SSA request official copies of M~ and T~'s divorce decree from the Winston County Clerk at the Winston County Vital Records and the Alabama Department of Public Health, Center for Health Statistics, Office of Vital Records. The addresses are:

We recognize that the ultimate burden of proof lies with J~ to prove that she is entitled to benefits as M~'s spouse. However, because the SSA, an uninvolved party to the M~-T~ marriage, questions the validity of the M~-T~ divorce and because the SSA has greater investigative resources than J~, the courts of New York will likely find that the SSA has the burden of conducting the substantial records searches required to determine the validity of the M~-T~ marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972)(holding that "[g]iven the comparatively great investigative resources of the Secretary and the apparently restricted means of appellant, it seems more appropriate to require the agency to undertake the substantial record searches necessary to negative the continued validity of [the prior marriage] … [particularly as] the presumption favoring a later marriage assumes greater force where…the later marriage is attacked, not by a putative first wife or children of the first marriage, but instead by a party, like the Secretary, who is altogether a stranger to any domestic relationship in question"); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983)(where plaintiff requested that the Secretary conduct the considerable record searches required to prove the continued validity of her husband's prior marriage, "[i]t was not the plaintiff's responsibility to ferret out this information. It was the Secretary's obligation to overcome the presumption of the validity of [plaintiff's] marriage"). It is important to note, however, that if, after reasonable efforts, the evidence is inconclusive or insufficient to establish the invalidity of M~'s divorce from T~, the presumption of validity attaches to M~'s marriage to J~. J~, therefore, might be entitled to receive spousal benefits as the wife of M~, assuming, of course, that she has sufficiently demonstrated that her marriage to R~ was void.

c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:

The Supreme Court of New Jersey has held that where the validity of an "ancient foreign divorce" is challenged, equitable principles of fairness will apply to defeat invalidation. Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998)(holding that although husband provided sufficient evidence to rebut the presumption of validity of his marriage, including undisputed evidence of jurisdictional defaults associated with his wife's prior 1968 Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the validity of marriage based on the invalidity of wife's prior divorce). The court cautioned against "the human and legal problems that would result if those ancient foreign divorces are found to be invalid many years later." Id. at 916, 152 N.J. at 233.

In determining whether a prior, ancient divorce will be found invalid, the court will consider factors such as "(1) the length of time the parties were [subsequently] married, (2) the acts undertaken by the parties that indicate they held themselves out to as husband and wife, and (3) the good faith of the party who procured the first divorce." H~, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, M~ was married to J~ on July 21, 1962, and then to Ellen from August 7, 1965 to the present time. There is nothing in the record to indicate that M~ did anything other than to hold himself out to the public as married to J~ and later to Ellen. There is also no indication that M~ was involved in fraud. The record is not sufficient, however, to determine whether T~ acted in good faith in procuring the divorce.

Given the language of the H~ decision, a court in New Jersey would likely find that the divorce between T~ and M~ was valid, even if additional factual development of the record conclusively determined that there was jurisdictional error, a fraudulent grant of divorce, or fraud on the part of T~ in pursuing a divorce in Alabama. If it turns out that M~ participated in the fraud, especially if J~ was also involved, you should contact us to discuss the issue.

In conclusion, to receive spousal benefits on M~'s record, J~ must provide clear and convincing evidence that R~ was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If J~ can provide evidence sufficient to establish that her marriage to R~ was void, the validity of M~'s divorce from T~ must be considered as discussed above. If J~ is unable to carry her burden of proof, the presumption of validity attaching to her marriage with R~ will continue, and she cannot receive benefits as M~'s spouse.

Barbara L. Spivak

Chief Counsel, Region II

By:____________

/s/Gina Shin

Assistant Regional Counsel

The NH, who was divorced from his first wife, married another woman in Florida. He then divorced the second wife and remarried his first wife, but continued to live with his second wife. After his death, a Florida Circuit Court set aside the divorce from the second wife, declaring it null and void abinitio; the court found that the divorce was a sham so that the NH could remarry his first wife for immigration purposes. Therefore, the NH lacked the legal capacity to remarry his first wife, and was still married to the second wife at the time he died. The second wife is legally the NH's widow, and the first wife cannot qualify as his deemed widow because she was not living with the NH when he died. The first wife also cannot qualify as the NH's surviving divorced spouse because the marriage lasted less than 10 years.

You requested a legal opinion as to which of the two claimants named above is entitled to benefits as the widow of the deceased number holder (DNH). At the time of his death, the DNH was married to Esther Maxima (W1), although they did not reside together. She was in Cuba, and he was domiciled in Florida, living with E~ (W2).

In your memorandum to this office, you presented the following facts: DNH married W1 in Cuba on June 6, 1959. On November 15, 1968, they divorced, presumably in Cuba. On May 6, 1976, DNH married E~ (W2) in Florida. They divorced in Florida on January 29, 1982. On September 23, 1983, DNH remarried W1 in Cuba. DNH died in an accident in Florida on June 23, 1984. At the time of his death, he was legally married to W1, although he continued to live uninterruptedly with W2. W1 entered the United States on a hardship visa one week after his death. On February 10, 1986, the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, set aside the divorce from W2, declaring it “null and void ab initio.” Estrella M~ v. Maxima Guerrero M~, No. 84-34177 CA 16 (Fla. Cir. Ct.). W2 was awarded widow's benefits in May 1999. W1 was awarded widow's benefits effective January 2003.

Pursuant to 42 U.S.C. § 416(h)(1)(A)(i), an applicant is the widow of an insured individual if the courts of the state in which the insured individual was domiciled at the time of his death would find the applicant and the insured individual were validly married at that time. In addition, 42 U.S.C. § 416(h)(1)(B) provides that, if an applicant is not the widow under subparagraph (A) but has established to the satisfaction of the Commissioner of Social Security that she, in good faith, went through a marriage ceremony with the insured individual which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, such purported marriage shall be deemed to be a valid marriage for purposes of this section. NH died domiciled in Florida and therefore Florida law applies in determining Claimant's marital status.

It is well established in Florida that a presumption of validity 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 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. Once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either death or legal action. Id., at 317.

In this case, however, W2 has presented such “competent proof” as to call into question the validity of DNH's marriage to W1 at the time of his death. Because the Florida court set aside DNH's divorce from W2, and because the divorce was declared “a nullity, ab initio”, ^[3] DNH did not have the legal capacity to remarry W1. Consequently, he was not married to W1 at the time of his death, but rather was still legally married to W2. Therefore, W2 is legally the “widow ”of the DNH.

The inquiry becomes, then, whether W1 may still be entitled to benefits. Although an argument could be made that, notwithstanding the Florida court's finding that the actions of the DNH constituted extrinsic fraud, W1 entered into the marriage with the belief that the DNH had the legal capacity to marry, and should therefore be entitled to benefits under Section 416(h)(1)(B) as a “deemed widow.” ^[4] However, because W1 was living in Cuba at the time of the DNH's death, she is precluded from receiving benefits under this section. 42 U.S.C. § 416(h)(1)(B)(1) states that “in the case of any person who would be deemed under the preceding sentence a wife, widow, husband, or widower of the insured individual, such marriage shall not be deemed to be a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual ….” As noted above, at the time of his death, the DNH was living with W2.

The next inquiry is whether W1 could be entitled to benefits as a surviving divorced spouse. However, based on the facts presented, the DNH and W1 were married from June 6, 1959 until November 15, 1968, which falls six months short of the ten years required under Section 416(d). Based upon the facts as they have been presented, it appears that the 1999 award of benefits to W2 was proper, but that there is no basis under the statute for granting benefits to W1, because she does not meet the requirements of either a deemed widow, or of a surviving divorced spouse.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

Michael S. Feinstein

Assistant Regional Counsel

Florida statutes and case law do not contain a concept such as “continuation of marriage.” A divrce decree brings about a termination and final disposition of the marriage relationship. Where a separate maintenance decree is obtained instead of a divorce, there is a continuation of the marriage relationship. However, in this case the facts indicate that the parties obtained a divorce, not a separate maintenance decree. Therefore, the first marriage cannot be considered to have “continued.” The couple was married for two separate periods (1/75 - 3/81, and 3/82 - 4/89), neither period equaling at least 10 years for purposes of entitlement as a surviving divorced spouse on the NH's record.

You have requested our opinion as to whether the concept of “continuation of marriage” is recognized under Florida law and would apply to a situation where the parties were married to one another two different times for an aggregate amount of more than 10 years. Florida does not appear to recognize “continuation of marriage.”

Betty applied for surviving divorced spouse's benefits on the record of D~ (NH). She married the NH in Florida in January 1975 and they were divorced in Florida in March 1981. They remarried in Florida in March 1984 and divorced in Arkansas in April 1989. Neither was married to anyone else during the period between their marriages. Betty indicated that at their second marriage ceremony, the officiating judge advised them that they could get a “continuation of marriage” judgment that would void their divorce and make a second marriage unnecessary. The couple chose not to pursue that avenue and proceeded with their ceremonial (and legal) marriage. Betty was denied benefits as a divorced spouse on NH's record because she was not continuously married to NH for at least 10 years. 42 U.S.C. §216(d)(2); 20 C.F.R. §404.331 (2002).

Research of Florida statutes and case law did not reveal did not reveal a concept such as “continuation of marriage.” A divorce decree brings about a termination and final disposition of the marriage relationship. See Bredin v. Bredin, 89 So.2d 353, 355 (Fla. Sup. Ct. 1956). Where a separate maintenance decree is obtained instead of a divorce, there is a continuation of the marriage relationship. Id. However, the facts related to us indicate that the parties obtained a divorce, not a separate maintenance decree. Accordingly, Betty would not qualify for benefits on the NH's account.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

Laurie G. Remter

Assistant Regional Counsel

DIVORCE — VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE — .,FLORIDA

The law of the state in which the wage earner was domiciled at the time the wife filed claim for wife's insurance benefits determines whether applicant has status of wife of living wage earner. Section 216(h) (1) (A) of the Act. Florida would apply its own law in determining validity of divorce. see, opinions, Re W~ - ~ RAII [O~] - to P.C., N.Y. 01/20/61; Mabee, Lyman, Martha - RAIV - [W~], to Dir., Ins.Progs.Br., 07/16/81.

( William - SSN ~ - RAIV [J~] - to ARC, Progs., RAIII, 09/10/85)

DIVORCE — VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE — OUTSIDE UNITED STATES — FLORIDA

Florida courts will not recognize a foreign nation's, (i.e., Dominican Republic) 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 S~, 409 So.2d 487 (1982). See, opinion, Re, Anne - ~ RAIV [W!] - to Asst.Reg.Comm., Progs., N.Y., 09/12/84.

(B~ , William J. - SSN ~ - RAIV [J~] - to ARC, Progs., RAIII, 09/10/85)

In your memorandum, you requested our advice as to the validity of the wage earner's (William ~) Dominican Republic divorce decree under Florida law.

Region III was uncertain as to which law applied since the insured lived in Florida and Anne , his first wife, continues to live in Delaware.

The record indicates that William married Anne on June 20, 1942, in Wilmington, Delaware, and subsequently divorced her in the Dominican Republic on November 1, 1974. The divorce decree indicates that the wage earner started his residency in the Dominican Republic on October 11, 1974, by filing for divorce as the plaintiff against his wife, Anne . The wage earner appeared personally in the proceedings, but Anne was not present nor represented by an attorney. Anne stated that she was not aware of the November 1, 1974, proceedings until she received a copy of the final decree. The file also indicates that the wage earner married Evelyn on November 7, 1974, in Miami, Florida. Further, the record indicates that the wage earner's second spouse whose date of birth is alleged to be May 15, 1923, intended to file for wife's benefits.

For reasons hereafter stated, it is this office's opinion that Florida law applies to the instant case. It is also our opinion that Florida courts would not recognize the Dominican Republic divorce decree as being valid.

Pursuant to Section 216(h) (1) (A), an applicant is the wife of an insured if the courts of the state in which the insured is domiciled at the time the applicant files her application would find such applicant was validly married. The record evidence indicates that the insured was domiciled in Florida at the time Anne, his first wife, filed for wife's benefits. Therefore, the Florida law must be applied in determining her marital status.

In determining the validity of a foreign divorce, Florida would apply its own laws and not that of Delaware. See, opinions, Re, George - ~ RAII [O~] - to P.C., N.Y. 01/30/61; Mabee, Lyman, Martha - RAIV [W~] - to Dir., Ins.Progs.Br., 07/16/81.

It is well settled law that the courts of Florida 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 S~, 409 So.2d 487 (1982); Kirtle v. Kittle, 194 So.2d 640 (1967), (reh. denied 1967), 210 So.2d 1 (1967). See, opinions, Anne . - - RAIV [W~] - to Asst.Reg.Comm., Progs., N.Y. 09/12/84; Mabee, Lyman, Martha - RAIV [Williams] - to Dir., Ins.Progs.Br., 07/16/81;, George - ~~- RAII [O~] - to P.C., N.Y. 01/30/61.

Although the Florida courts have not enumerated the elements necessary to establish a good faith domiciliary, domicile in a foreign country, they have provided some guidance. In In Re Estate of S~, supra, the court noted the wage earner's stay in the Dominican Republic lasted for only six days and that the wage earner returned to New York immediately after the decree was rendered and remained there for more than a year before moving to Florida. Based upon these observations, the court concluded that the wage earner had no intention of remaining in the Dominican Republic and that he was not a good faith domiciliary of the Dominican Republic. Based upon the facts in the present case, we believe the courts would rule likewise in this case.

The record evidence indicates that the wage earner began his residency in the Dominican Republic on October 11, 1974, by filing for divorce. The record evidence further indicates that the decree was granted on November 1, 1974 and that on November 7, 1974, in Miami, Florida, the wage earner married Evelyn . Plaintiff has remained a resident of Miami, Florida. The wage earner's stay in the Dominican Republic lasted only about three weeks. More importantly, the wage earner returned immediately to the United States after the decree was rendered. Thus, it is apparent that the wage earner had no intention of establishing his domicile in the Dominican Republic. It is our opinion that the Florida courts would reach the same conclusion and, therefore, treat the foreign decree as void for the lack of jurisdiction. Therefore, you would be justified in finding that Evelyn is not the wife of the wage earner and is not entitled to benefits based on the wage earner's account.

DIVORCE — OUTSIDE UNITED STATES — FLORIDA

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE — FLORIDA

Florida courts will not recognize a Mexican divorce judgment unless at least one of the spouses was a good faith domiciliary of Mexico at the time the judgment was rendered.

(Anne - ~ - RAIV [W~], to Ass't. Reg. Comm., Progs., N.Y., 09/12/84)

In your memorandum you asked whether a Mexican marriage between Gamiel and Anne would be a valid marriage under Florida State law.

Gamiel married Pearl in 1948 in New York and subsequently divorced her in Mexico on September 5, 1970. Anne married Arthur in New York in 1954 and subsequently divorced him in Mexico in August 1969. According to the file, Gamiel and Anne were the plaintiffs in their Mexican divorce actions, and their respective spouses were represented by counsel in the Mexican proceedings. On the day of his Mexican divorce from Pearl (September 5, 1970), Gamiel and Anne were married in Mexico. According to the file all parties to the Mexican divorces were domiciled in New York. Gamiel and Anne were apparently domiciled in New York at the time of their marriage in Mexico. In the absence of any evidence to the contrary, it is assumed that all parties to the Mexican divorces and the Mexican marriage were domiciled in New York. Pearl did not remarry. It is not known whether A~ remarried. Anne died on April 30, 1981. G~ filed an application for widower's benefits on Anne's account in February 1984 as a resident of Florida.

Pursuant to Section 216(h)(1)(A), an applicant is the widower of an insured if the courts of the State in which the insured is domiciled at the time the applicant files his application would find such applicant was validly married. Florida courts will not recognize a Mexican divorce decree unless at least one of the spouses was a good faith domiciliary of Mexico at the time the decree was rendered. (Validity of Haitian Divorce Under the Law of the State of Florida - Wilmarth, RAIV [W~], to Director, MAPSC, 01/03/84); (Mabee, Lyman, Martha, RAIV [W~], to Director, Insurance Programs Branch, 07/16/81); In Re Estate of S~, 409 So.2d 487 (1982).

In the present matter, both Gamiel and Anne procured Mexican divorces but all parties to those divorces were apparently domiciled in New York. Therefore, Florida courts would not recognize these divorces. Consequently, there would be a legal impediment to the validity of the Mexican marriage of Gamiel and Anne under Florida law. However, the Florida courts may invoke the doctrine of laches and estoppel thereby denying the former spouses the opportunity to contest the validity of the Mexican divorces which are apparently invalid on jurisdictional grounds. Lanigan v. Lanigan, 78 So.2d 92 (1955). The specific circumstances which may invoke this doctrine are discussed in the attached Mabee opinion.

Accordingly, it is the opinion of this office that Florida courts would recognize the Mexican marriage only if you should find factual circumstances which would invoke the doctrine of laches and estoppel under Florida law.

DIVORCE — VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE — FLORIDA

Where two individuals obtained a Mexican divorce and remarried and both couples resided in Florida at the time the claim for benefits was made, we held that Florida courts would not recognize the foreign divorce decree but might apply the equitable principles of estoppel and laches in adjudicating the issue of the validity of both second marriages.

(Saarman, ~- RAIV [A~], to OGC, Region II, 03/07/84)

Your office has requested that we review Florida law to assist you in responding to a question of the recognition of a foreign divorce. The following information was presented with respect to this question.

E~ and E~ were married in October 1944 in New York City, New York. On October 16, 1956, E~ obtained a divorce in Mexico from E~ . She personally appeared in Mexico and E~ was represented by an attorney. Prior to the divorce, she lived in New York, as did E~. She never returned to New York after obtaining the Mexican divorce. E~ apparently continued to live in New York. On October 25, 1956, E~ married Sergejs in Nevada. She remained married to him until his death on May 1, 1983 in Florida, where she currently resides. On September 7, 1957, E~ married Aili in New York City, New York, and they are still married. They currently live in Florida. New York recognizes Mexican divorces, like E~ and E~'s, where both spouses enter appearances, so E~ and Aili's New York marriage is valid. Florida will generally follow the practice of recognizing the validity of marriages valid where celebrated, which means that E~ and Aili's marriage is valid in Florida. 1_/However, a question arises as to whether Florida would recognize the validity of the Nevada marriage of E~ and Sergejs in that both Florida and Nevada courts frequently refuse to recognize Mexican divorces between non-domiciliaries of Mexico.

The question of whether an applicant for benefits is the spouse or widow(er) of an insured individual is determined by the law of the State in which the insured is living at the time of the application. If the insured is deceased, marital status is determined by the law of the State where he was domiciled at his death. Section 216(h)(1)(A) of the Social Security Act, as amended (42 U.S.C. §416(h)(1)(A)). Therefore, in deciding whether Aili or E~ is the legal spouse of E~ for Social Security purposes the Secretary must look to Florida law, and if no Florida court has decided such a case the Secretary must make the determination as she believes Florida's highest court would. Cain v. Secretary of Health and Human Services , 377 F.2d 55 (4th Cir. 1967).

Under Florida law, the validity of a marriage is generally determined by the law of the State where the contract of marriage takes place. See, Young v. Garcia, 172 So.2d 243 (1965). Furthermore, there is a strong presumption of the validity of the last marriage in Florida. See, Jenkins v. Jenkins Estate, 384 So.2d 266 (1980); In re Lee's Estate, 360 So.2d 1111 (1978); King v. Keller, 141 So.2d 259 (1962).2_/ However Florida refuses to recognize the validity of marriages that rest upon invalid divorces.

The most recent case we found dealing with the issue of foreign divorces in Florida is In Re Estate of S~, 409 So.2d 482 (1982). In the S~ case, a Leonard S~ who had been married to Dora S~ since 1929, obtained a divorce in Santa Domingo, Dominican Republic, in 1972 while Dora was institutionalized. Leonard appeared personally and was in Santa Domingo for six days. Dora was represented by a Dominican Republic lawyer. In 1973 Leonard and a woman named Sadie moved to Florida and held themselves out as husband and wife. There was never a formal marriage. A conflict arose when Leonard died leaving some property he had conveyed to Sadie as a joint tenant with a right of survivorship. The Florida courts made the property subject to homestead rights of the first wife and declared that Dora was still married to Leonard and that she and Sadie were owners of a one-half undivided interest. In ruling that Leonard was still married to Dora the Florida court refused to honor the Dominican Republic's decree noting at page 489 that:

States are not required to give full faith and credit to divorces rendered in foreign nations. Whether a State will give force and effect to a foreign divorce decree is solely a question of comity. Parker v. Parker, 155 Fla. 635, 21 So.2d 141 (1945), cert denied, 326 U.S. 718, 66 S.Ct. 23, 90 L.Ed. 425 (1945); Schwartz v. Schwartz, 143 So.2d 901 (Fla.2d DCA 1962). To actuate the doctrine of judicial comity a foreign judgment must partake of the elements which would support it if procured in this country. For example, the grounds relied upon must be sufficient under Florida law and the petitioning party must satisfy the jurisdictional requirements relating to domicile. Pawley v. Pawley, 46 So.2d 464 (Fla), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950); Kittel v. Kittel, 194 So.2d 640 (Fla.3d DCA 1967), cert. discharged, 210 So.2d 1 (Fla. 1967); Annot., 13 A.L.R.3d 1419 (1967). It has long been held that 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. 26 Fla.Jur.2d Family Law §798 (1981); Schwartz v. Schwartz, supra; Kittel v. Kittel, supra; accord, Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

Based on the foregoing language, it would appear that Florida courts never honor foreign divorce decrees where neither party was a resident of the foreign country. Nonetheless, the factual situation presented here is very different from that presented in the cited cases and one where we feel the Florida courts would appropriately apply the equitable principles of estoppel and laches in adjudicating the issue of the validity of both second marriages. In particular, it is our opinion that a Florida court, while not recognizing the validity of the foreign decree per se, would recognize the validity of the subsequent marriages because all parties would be estopped from challenging the validity of the divorce or the second marriage because of the length these relationships have existed. For example, if E~ were to make a claim as E~'s legal wife, her own remarriage in reliance on her Mexican divorce and her long delay in attacking E~'s second marriage might lead to the invocation of estoppel and laches to defeat her. Florida has reached this result in similar cases. Lanigan v. Lanigan, 78 So.2d 292 (Fla. Sup.Ct. 1955); Astor v. Astor, 107 So. 26 201 (Fla. Dist.Ct. of Appeals 1954); Dawson v. Dawson, 164 So.2d 536 (Fla. Dist.Ct. of Appeals 1964).3_/ See also, Reicherr v. Appel, 74 So.2d 674 (1954) where an individual was estopped from impeaching a foreign decree where there was some action recognizing its validity.

Moreover, in an earlier opinion regarding the validity of a marriage after a Mexican divorce it was stated that:

"It has been our opinion that although the rule in Florida respecting recognition of foreign divorces by comity is that domicile of one of the parties in the divorce forum and appearance by the other in the action is a prerequisite, Florida will still recognize such a divorce on the basis of estoppel. L~ - RAII (T~), to Reg'l. Rep., BRSI, New York, 8/21/72.

We agree that it is difficult to predict how a Florida court would treat the marriage of E~ and Sergejs but we do feel that this is a situation where equitable principles of estoppel and laches would be very germane to the ultimate decision.

Also, while we could find no Florida cases directly on point, there is some authority in case law in other jurisdictions where a challenge to the validity of a Mexican decree was not allowed because of the length of time and the fact that both parties had remarried. See, e.g., Mattas v. Corlin, 274 Cal. App. 2d 413 (1969). In addition, in reviewing the cases in this area, we noted that the foreign divorce decree usually was not honored where one of the spouses is challenging the divorce, there has been no remarriage by the parties involved and very little time has passed since the foreign divorce.

We hope this memorandum will be helpful in formulating your final response to the question of who is the legal spouse of E~

DIVORCE — VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE — FLORIDA

Florida courts refuse to recognize divorces procured in foreign countries where neither spouse was domiciled. Kittel v. Kittel, 194 So.2d 640 (1967); Mabee, Lyman, Martha, RAIV (W~), to Director, Insurance Programs Branch, July 16, 1981.

(Validity Of Haitian Divorce Under The Law Of The State Of Florida - Wilmarth , RAIV [W~], to Director, MAPSC, 01/04/84.)-

In your memorandum, you asked us to advise you regarding a hypothetical situation. According to the information submitted, the present beneficiary, Nan , married Harry in the State of Pennsylvania in 1939. As residents of New York State the couple executed a formal separation agreement on November 25, 1975 as residents of New York State. The beneficiary then went to Haiti for the express purpose of getting a divorce and did so on December 4, 1975. The grounds for the Haitian divorce are not stated in the memorandum submitted to this office. Her husband was represented by counsel at the proceedings. Both parties were admittedly domiciled in New York State. The beneficiary subsequently married Wilmarth on May 14, 1977 in Connecticut. The beneficiary and her husband subsequently moved to Florida. The beneficiary is apparently domiciled in Florida and applied for Social Security Administration benefits as the wife of Wilmarth . The beneficiary has been awarded benefits under the invalid ceremonial marriage provisions of the Social Security Act.

Satisfied that the beneficiary was legally divorced under New York law and that the subsequent Connecticut marriage was valid in Connecticut, you have asked whether the Haitian divorce would be valid under Florida law citing our prior opinion of Lyman . Your question is apparently prompted by the prospect of the beneficiary surviving her present husband as his widow and such husband dying domiciled in Florida.

The issue you raise is hypothetical and this office is obviously reluctant to render opinions is such instances. However, if the insured did die domiciled in Florida and at such time there were no facts upon which to invoke the doctrine of laches and estoppel against the first wife, it is the opinion of this office that the principles set out in our Lyman opinion of July 17, 1981 would be applicable. The more recent case of In re Estate of S~, 409 So. 2d 487 (1982), further substantiates our opinion in Lyman. A copy of this case has been attached.