You have requested an opinion on whether the Mexican divorce obtained by G~ from his
first wife is valid under Pennsylvania law, and if so, whether Pennsylvania courts
would recognize the validity of the subsequent marriage between G~ and I~ based on
the doctrine of estoppel, and, therefore, entitling I~ to receive widow's benefits,
a disability insurance benefits (DIB) underpayment, and a lump sum death payment due
on G~'s record.
As we understand the facts, G~, the deceased insured, died on May XX, 1995, while
domiciled in Pennsylvania. On August XX, 1959, B~ married G~ in a civil ceremony in
New York. G~ obtained a Mexican divorce from B~ on May XX, 1970. He appeared personally
at the proceedings in Mexico. B~ did not appear, but was represented by counsel after
having been served with the divorce papers and answering the complaint.
G~ then married I~ in a civil ceremony on May XX, 1970. They separated (date unknown)
and G~ thereafter lived with B~ until his death in May 1995. B~ did not marry anyone
after her divorce from G~.
B~ filed a DIB-after-death claim in May 1995, as well as a lump sum death claim and
a claim for the underpayment due on G~'s record ($4627). B~ was paid the $255 lump
sum benefit. Her claim for the underpayment, however, was denied in May 1997 because
of lack of evidence showing that she was the legal spouse of G~ at the time of his
I~ did not remarry after G~'s death. On November XX, 1995, she filed an application
for all benefits. She was awarded surviving divorced wife's benefits on the record
of her first husband, T~, effective November 1995. You have already determined that
I~ cannot qualify as a deemed spouse for benefits on G~'s record because she was not
living with him at the time of his death.
The questions presented are whether the Mexican divorce is void under Pennsylvania
law, and what effects the validity or invalidity of the divorce has on I~'s status
for social security purposes, particularly her entitlement to the underpayment.
Pursuant to § 216(h)(1)(A) of the Social Security Act, a claimant is considered to
be the widow of a deceased wage earner if the courts of the wage earner's domicile
at the time of his death would find that the claimant and the wage earner were validly
married when he died. In the absence of a valid marriage, eligibility may still be
found if the claimant has the same status respecting the devolution of intestate personal
property as a legal spouse. Since G~ died a Pennsylvania domiciliary, I~'s marital
status must be evaluated under Pennsylvania law.
A. Validity of the Mexican Divorce Decree.
Generally, a Mexican divorce decree will be recognized by Pennsylvania under the doctrine
of comity, unless it is shown to be invalid under Pennsylvania law. Thompson v. Yarnell, 169 A. 370, 373 (1933). In Pennsylvania, for a Mexican divorce decree to be invalid,
it must be shown not only that the respondent was not in Mexico at the time of the
proceedings, but that she was never properly served with process, was not represented
by counsel, and that the cause of action did not arise in the foreign jurisdiction.
Id. Furthermore, a prerequisite for judicial recognition of a foreign divorce is that
the party seeking the divorce must have resided in the state or country for a minimum
period of residency as determined by the local authority and the residency be accompanied
by domiciliary intent.
Sargent v. Sargent, 307 A.2d 353 (1973).
In our opinion, it appears that the Mexican divorce decree at issue was valid under
Pennsylvania law. B~ was served with process and she was represented by counsel in
the divorce proceedings. Moreover, there is no evidence, at this point, to suggest
that G~ did not satisfy the necessary residency requirements, or that his residency
was not accompanied by domiciliary intent. Indeed, presumably, G~ met the residency
requirements because the divorce decree was granted by the Mexican court. It is very
likely then, in the absence of any other facts, that a Pennsylvania court will find
the Mexican divorce valid. In fact, under Pennsylvania's Divorce Code today, the validity
of a divorce decree cannot be questioned in any court after the death of either party
to the proceeding, 23 Pa.C.S.A. § 3331.
Accordingly, based on the above facts, it appears that Pennsylvania would recognize
the Mexican divorce as valid.
B. B~ Estopped from Challenging the Divorce.
Even if it could be established that the Mexican divorce is invalid under Pennsylvania
law, it appears that B~ would still be estopped from challenging its validity.
In Lowenschuss v. Lowenschuss, 579 A.2d 377, 381 (1990), the Superior Court of Pennsylvania specifically held that
it was erroneous to decide first whether a divorce was valid and then whether the
subsequent marriage was valid. Rather, the Court stated that the proper approach is
to first consider whether the spouse is estopped from raising the issue of the validity
of the divorce and the present marriage. Id. If the spouse is estopped, the inquiry is at an end, and there is no need to determine
the validity of the divorce. Id.
Pennsylvania courts have a long history of applying the doctrine of estoppel to a
wide variety of cases involving attacks on invalid divorces. See Diamond v. Diamond, 461 A.2d 1227 (1983) (holding that husband was estopped from challenging the invalidity
of a "mail order" divorce he obtained against wife); Rosen v. Sitner, 418 A.2d 490 (1980) (holding that a husband, who took advantage of a prior Mexican
divorce decree in order to marry his wife and having lived with her for seven years,
could not later assert the decree was invalid); Sargent v. Sargent, 307 A.2d 353 (1973) (holding that a wife is not estopped from challenging the validity
of Mexican divorce where she was not a party to the divorce).
Several circumstances will call for the application of the estoppel doctrine. Lowenschuss, 579 A.2d at 382. For example, estoppel will usually be found when the divorce was
obtained by the very party attempting to attack it. Id. Estoppel may also be found where there has been a long acquiescence in the divorce
with knowledge of its jurisdictional defect and neither party has contested it. Id. Acceptance of benefits, usually alimony, will also often foreclose an attack, as
will remarriage after the defective decree, either by the person attacking the decree,
or by the other party. Id. Finally, the Divorce Code also recognizes that a party who has agreed to the procurement
of a divorce, or who is guilty of laches, is generally barred from making a collateral
attack upon the validity of the decree. 20 Pa.C.S.A. § 3333.
In this case, there were several factors that could support a finding that B~ is estopped
from challenging the Mexican divorce. First, although she did not initiate the divorce
proceedings, it was clear that she participated in its procurement. She was aware
of the divorce proceedings in Mexico.
She filed an answer to the divorce complaint, and she was represented in the proceedings
by an attorney.
There was also a long period of acquiescence. The divorce was obtained in May 1970,
and to this date, over twenty-five years later, B~ has never challenged the validity
of the divorce. Furthermore, even though B~ never remarried after the divorce, G~
did marry I~ which indicated a belief, at least on G~ and I~'s part, that the Mexican
divorce was valid.
Accordingly, there was sufficient evidence to suggest that Pennsylvania courts will
find B~ estopped from challenging the Mexican divorce.
C. Second Marriage Is Presumed Valid.
When evaluating the validity of a second or later marriage, Pennsylvania recognizes
two conflicting presumptions. In re Estate of Watt, 185 A.2d 781, 785-86 (1962). The first presumption is that a valid first marriage
continues until it is proven to be dissolved by death, divorce or annulment. Huff v. Director, Office of Personnel Management., 40 F.3d 35, 39 (3d Cir. 1994) (citing to Watt, 185 A.2d at 785-86). The second presumption presumes the innocence and validity
of a second marriage. Id. When there is a conflict in the presumptions, Pennsylvania courts perform a balancing
test to determine which of the two presumptions is more easily sustained by the evidence.
In applying Pennsylvania law, the Third Circuit rejected the theory that the first
marriage must be shown conclusively to have terminated before the second can be recognized. Huff at 40 F.3d at 42. See Cupler v. Secretary of Health and Human Servs., 252 F. Supp. 178 (1966) (holding that a marriage which went unchallenged during
the twenty-eight years both spouses lived and for nearly five more years after the
husband died was clothed with presumption of validity). Each case must be resolved
on the basis of its own facts and circumstances.
In this case, based on the evidence thus far, we believe the presumption of continuance
of the marriage between G~ and B~ yields to the presumption of validity of the marriage
between G~ and I~.
B~ was served with divorce papers. She answered the complaint and she was represented
in the divorce proceedings by an attorney. She does not deny the divorce. Moreover,
in the twenty-five years following the divorce, its validity has never been challenged.
A copy of the divorce decree is also in the claims file. Thus, there was a record
of the divorce. This was sufficient proof that the first marriage had been dissolved.
Furthermore, as stated above, the fact that G~ married I~ only four days after his
divorce proved that both he and I~ believed the divorce was valid and that they had
the right to marry each other. Indeed, under New York law, which was where G~ and
I~ got married, the Mexican divorce would have been considered valid. See Rosen v. Sitner, 418 A.2d 490, 492 (1980) (holding that a Mexican divorce decree was valid under
New York law where one spouse appears personally and the other spouse submits to the
jurisdiction of the court by entering an appearance). That was the situation in this
case. Accordingly, there was no evidence in the record to suggest that G~ and I~ did
not innocently enter upon the second marriage.
Moreover, even though G~ and I~ were not living together at the time of G~'s death,
they were still married. There was no evidence that they divorced. Even G~'s death
certificate listed I~ as his surviving spouse.
This case was somewhat unusual in that B~ and G~ apparently reconciled with each other
and lived together until his death in May 1995. B~ even applied for social security
benefits as G~'s widow. None of these factors, however, lessen the more supportable
presumption that the second marriage between I~ and G~ was valid.
Finally, our opinion is based on the evidence as it currently exists in the file.
If new evidence is discovered changing any of the above facts, our opinion may change.
In that event, you may want to consult us again.
It appears that I~ is G~'s widow for social security purposes. Accordingly, she would
be entitled to the DIB underpayment, and eligible for widow benefits and the lump
sum death payment, provided all the other requirements for these benefits are met.