You asked for an opinion as to whether the Number Holder and Pamela L. B~ had a valid
divorce and whether Pamela L. B~ would be entitled to disabled widow's or divorced
disabled widow's benefits on the Number Holder's account.
Question Presented
CONCLUSION
Based on our review of the facts of this case and our research of the relevant New
York statutes and case law, it is our opinion that the Number Holder and Pamela L.
B~'s "mail order" divorce from the Dominican Republic would not be considered valid
under New York law. However, based on her fourteen year delay in contesting the divorce,
during which time the Number Holder remarried, we believe that Pamela L. B~ would
be estopped from denying the validity of the divorce on the ground of laches. Accordingly,
it is our opinion that Pamela L. B~ is not entitled to disabled widow's benefits on
the Number Holder's account. Furthermore, even if the divorce had been valid, Pamela
L. B~ would not be entitled to divorced disabled widow's benefits on the Number Holder's
account as she was not married to the Number Holder for ten years immediately before
the date on which her divorce from the Number Holder would have become effective.
BACKGROUND
In your request, you indicated that the Number Holder was married to Pamela L. B~
(Pamela) on November 26, 1987. The Number Holder and Pamela were "unofficially" separated
in 1989. On May 13, 1991, the Number Holder filed for and was granted a divorce from
Pamela in Santo Domingo, The Dominican Republic. The divorce papers indicate that
the Number Holder was domiciled in the Netherlands and Pamela was domiciled in West
Virginia at the time of the divorce. There is no indication that either the Number
Holder or Pamela was present in Santo Domingo when the divorce was filed or processed.
The divorce paperwork indicates that the Number Holder and Pamela each signed and
filed a notarized "power of attorney" form authorizing attorneys with offices in Santo
Domingo to represent them in the divorce action.
On March 24, 1991, a child, Paul V. B~ (Paul), was born to the Number Holder and Zenaida
B~ (Zenaida). The Number Holder and Zenaida were married in Nevada on August 1, 1991.
The Number Holder and Zenaida remained married until the time of the Number Holder's
death.
The Number Holder died on April 7, 2003 in Wellsville, New York. At the time of his
death, the Number Holder had recently relocated to Wellsville to start a new job.
The Number Holder, Zenaida, and Paul had lived overseas from 1994 until 2003, most
recently in Panama. At the time of the Number Holder's death Zenaida and Paul were
still in Panama, but had planned to move to Wellsville to join the Number Holder shortly
after he'd settled in.
In June 2003, Pamela received copies of her divorce papers from the Number Holder's
attorney. She believes that the divorce in the Dominican Republic was never finalized
because the Number Holder's attorney told her that he believed that she and the Number
Holder were still married at the time of the Number Holder's death.
Pamela filed an application for surviving divorced disabled widow's benefits on October
20, 2005. That application indicates that Pamela married the Number holder on November
26, 1987 and that their marriage ended on April 7, 2003 due to the Number Holder's
death.
DISCUSSION
A. Determining the Validity of a Foreign Divorce
As you noted in your request for a legal opinion, the validity of a foreign divorce
is questionable when a person alleges that he/she was divorced in a foreign country
and there is no indication that either party to the divorce had some other connection
with that country. POMS GN 00305.170(A)(3)(b). 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 or at the time of filing
an application for spouse's benefits. POMS GN 00305.170(A)(2).
Domicile is defined as the place where a person has his/her true, fixed, and permanent
home to which he/she intends to return whenever away. Every person has a domicile
and can only have one at a time. POMS GN 00305.001(B)(2). In this case, although the Number Holder had only recently moved to New York
at the time of his death, New York would be considered to be his domicile. There is
no indication that the Number Holder maintained a home in another jurisdiction or
that he regarded another location as his home. Although the Number Holder's family
was still living in Panama at the time of his death, Zenaida indicated that this was
a temporary situation and that they intended to join the Number Holder in New York
shortly after he'd settled in. Accordingly, as the Number Holder was domiciled in
New York at the time of his death, New York law applies in analyzing the validity
of the Number Holder's and Pamela's divorce.
Under New York law, a divorce granted by a foreign country will be afforded comity
by the State of New York where the jurisdiction of the foreign tribunal was predicated
upon the consent of both parties and residency, rather than domicile, was established
by a statutory "brief contact" through the appearance of one of the parties. Kushnick v. Kushnick, 763 N.Y.S.2d 889, 892 (N.Y. Sup. 2003). However, mail order divorces, where a husband
and wife attempt to confer jurisdiction upon a court of a foreign nation by executing
powers of attorney to counsel residing there, and forwarding such instruments by mail
without ever visiting that nation, are void. Caldwell v. Caldwell, 298 N.Y. 146, 150 (N.Y. 1948).
In this case, there is no indication that either the Number Holder or Pamela was ever
present in the Dominican Republic during the time when their divorce action was filed
or processed. As their divorce appears to have been conducted as the type of "mail
order" divorce addressed by the Caldwell case, it is our opinion that this divorce would be considered invalid under New York
law.
B. The Principle of Estoppel
Under the principle of estoppel, even though a worker's divorce would not be valid
under the law of his/her domicile, the other party to the divorce may be estopped
from denying its validity. The estopped party is precluded from having the requisite
relationship to the worker to become entitled to benefits as his/her spouse. POMS
GN 00305.175(A).
With regard to the issue of estoppel, New York courts have held that neither inaction
nor delay in contesting a foreign divorce constitutes laches (negligence or undue
delay in asserting a legal right or privilege). See Sorrentino v. Mierzwa, 302 N.Y.S.2d 565 (N.Y. 1969). However, while mere inaction or delay does not constitute
laches, New York courts have held that an estoppel based on laches is appropriate
where the lapse of time and the intervention of circumstances render it unjust for
the court to aid the challenger. There is a line of case law wherein parties who took
no action for extensive periods of time, during which they accepted benefits under
a separation agreement, remarried themselves, or where their former spouse had remarried,
were estopped on the grounds of laches from challenging a foreign divorce. See Matter of Caputo, 699 N.Y.S. 2d 86 (N.Y.App. Div. 1999); Capalbo v. Capalbo, 549 N.Y.S.2d 794 (N.Y.App. Div. 1990); Miller v. Miller, 459 N.Y.S.2d 596 (N.Y.App. Div. 1983). In the case of Farber v. Farber, 269 N.Y.S.2d 608 (N.Y.App. Div. 1966), the court dismissed a claim by the former
wife that a Mexican divorce had been obtained by duress, holding that a period of
three years during which time the husband remarried was "inexcusable laches".
In this case, although the Number Holder's divorce from Pamela would not be considered
valid under New York law, we believe that Pamela would be estopped from denying its
validity. Although the Dominican divorce was executed in 1991, Pamela waited fourteen
years before contesting its validity. During that time period, the Number Holder remarried
and remained married to Zenaida until his death. We believe that, under New York law,
Pamela's actions would constitute inexcusable laches. Notably, Pamela does not allege
that she was not aware of the Dominican divorce proceedings. Indeed, the divorce paperwork
indicates that she filed a notarized power of attorney form, allowing an attorney
with an office in Santo Domingo to represent her interests in the divorce. The information
provided seems to indicate that Pamela did not question the validity of her divorce
from the Number Holder until after his death when the Number Holder's attorney told
her that he believed that she was still married to the Number Holder at the time of
his death. Accordingly, as Pamela would be estopped from denying the validity of her
divorce from the number holder, she is not entitled to disabled widow's benefits on
the Number Holder's account. Furthermore, even if Pamela's divorce from the Number
Holder had been valid, she would not be entitled to divorced disabled widow's benefits
on the Number Holder's account as she was not married to the Number Holder for ten
years immediately before the date on which her divorce from the Number Holder would
have become effective. See Social Security Act, §§ 202(e)(1); 216(d)(1) (2006); 20 C.F.R. § 404.336(a)(2) (2006).
CONCLUSION
For the reasons stated above, it is our opinion that the divorce of Donald E. B~ from
Pamela L. B~ would not be considered valid under New York law. However, based on the
fourteen year delay and the intervening change in circumstances (the remarriage of
Donald E. B~ to Zenaida B~) during that time, Pamela L. B~ would be estopped from
denying the validity of her divorce from Donald E. B~. Accordingly, Pamela L. B~ is
not entitled to disabled widow's benefits on Donald E. B~'s account. Furthermore,
even if the divorce had been valid, Pamela L. B~ would not be entitled to divorced
disabled widow's benefits on Donald E. B~'s account as she was not married to Donald
E. B~ for ten years immediately before the date on which their divorce would have
become effective.
Donna L. C~
Regional Chief Counsel
By:______________________
Heather B~
Assistant Regional Counsel