TN 13 (07-09)

PR 05005.036 North Carolina

A. PR 09-132 Eligibility for Widow's Insurance Benefits as a Surviving Divorced Spouse Number Holder - Orville C~ Claimant - Rozann C~

DATE: July 9, 2009

1. SYLLABUS

A Dominican divorce between two parties neither of which are domiciled in the Dominican would not be recognized as valid by the Courts of North Carolina. The parties were residents of North Carolina at the time of divorce and thereafter. North Carolina Courts would also find that the Dominican divorce is against North Carolina's public policy requiring the parties to live separate and apart for a year or more before obtaining a divorce. Therefore, the claimant cannot be find eligible for widow's benefits as a surviving divorced wife on the account of the number holder.

2. OPINION

QUESTION

You asked whether a claimant validly divorced her second husband in the Dominican Republic so as to qualify for widow's insurance benefits as a surviving divorced spouse of her first husband, the number holder, who was a resident of North Carolina at the time of his death.

OPINION

We believe a Social Security Administration (SSA) adjudicator could not find the claimant eligible for widow's insurance benefits as a surviving divorced spouse of the number holder because the Dominican Republic divorce from her second husband is invalid under North Carolina law.

BACKGROUND

Rozann C~ (Claimant) and Orville C~ (NH), married on May 4, 1968, in South Carolina. Claimant divorced NH on August 11, 1995, in North Carolina. NH died on February 4, 2006, in North Carolina. Claimant married Ernest G. F~ on February 9, 2002, in North Carolina. Claimant and Mr. F~ went to the Dominican Republic on February 6, 2009, and on February 9, 2009, both personally appeared before a Dominican court judge who issued a final divorce decree. Claimant was sixty-five years of age at the time she sought the divorce in the Dominican Republic. The Dominican divorce decree acknowledges Claimant and NH were married, resident, and domiciled in North Carolina at the time of the alleged divorce. Claimant and her second husband apparently continue to reside at the same North Carolina address as before the issuance of the Dominican divorce decree.

DISCUSSION

To be eligible for widow's insurance benefits under section 202(e) of the Social Security Act (Act), a claimant who is not the widow of an insured individual must be the insured individual's "surviving divorced wife" as that term is defined at section 216(d) of the Act. See Act §§ 202(e)(1), 216(d)(2), 42 U.S.C. §§ 402(e)(1), 416(d)(2); 20 C.F.R. § 404.336 (2009). A claimant can qualify as the surviving divorced wife of an insured individual if she was married to the insured individual for a period of ten years immediately before the date the divorce became effective, is at least sixty years old, applied for benefits, is not entitled to an old age benefit that is equal to or larger than the insured person's primary insurance amount, and is unmarried. See Act §§ 202(e)(1), 216(d); 20 C.F.R. §§ 404.336.

The question you raise is whether Claimant is unmarried, i.e., divorced from her second husband, as required to obtain divorced spouse's benefits. See Act § 202(e)(1)(A), 20 C.F.R. § 404.336(e). The Act and regulations do not address which laws apply to determine the validity of a divorce. To determine whether a claimant and a deceased, insured individual were validly married, SSA looks to the laws of the state where the insured had a permanent home when he died. See Act § 216(h)(1)(A)(i), 20 C.F.R. § 404.345 (2009). Although the validity of the marriage and divorce of Claimant and NH are not at issue here, the essential events occurred in North Carolina: the divorce of Claimant and NH, the location of NH's permanent home at his death, and the marriage and residence of Claimant and her second husband at the time of the alleged divorce and subsequent to the alleged divorce.

The Program Operations Manual System (POMS) explains how SSA determines the validity of a divorce. See POMS GN 00305.170. "A divorce is valid if it was granted by the court in whose jurisdiction at least one of the parties was domiciled at the time of the divorce." POMS GN 00305.170(A)(1). However, "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). The POMS also indicates a divorce is likely invalid when the evidence indicates neither party was a resident of the country in which the divorce was granted and a party went to the jurisdiction solely for the purpose of obtaining a divorce. See POMS GN 00305.170(A).

Based on the above, we believe the relevant inquiry is whether the Dominican divorce decree is valid under North Carolina state law. North Carolina statutes do not appear to specifically address the effect of a divorce obtained in another jurisdiction. However, case law is on point. The Supreme Court of the United States, in considering a case arising out of North Carolina, held that a state need not recognize foreign divorce decrees of parties domiciled in one state, but who received a divorce decree in a state other than that of their domicile. See Williams v. North Carolina, 325 U.S. 226, 238-39 (1945) ("We conclude that North Carolina was not required to yield her State policy because a Nevada court found that petitioners were domiciled in Nevada when it granted them decrees of divorce. North Carolina was entitled to find, as she did, that they did not acquire domicils in Nevada and that the Nevada court was therefore without power to liberate the petitioners from amenability to the laws of North Carolina governing domestic relations."). The Court had before it a judgment of the Supreme Court of North Carolina which recognized that domicile of at least one of the parties in the state where and when the proceedings were instituted is essential in a divorce action. See State v. Williams, 29 S.E.2d 744, 750 (N.C. 1944). The North Carolina court held Nevada divorce decrees were "ineffectual to sever the marriage ties" because the parties were domiciled in North Carolina when they brought their actions for divorce in Nevada. Id. at 751.

North Carolina also has held that a divorce obtained in a foreign country is ineffectual when the parties are domiciled in North Carolina. In Mayer v. Mayer, 311 S.E.2d 659, 664 (N.C. Ct. App. 1984), review denied, 321 S.E.2d 140 (N.C. 1984), the court declared a Dominican divorce invalid. See Atassi v. Atassi, 451 S.E.2d 371, 374 (N.C. Ct. App. 1995) (describing Mayer as North Carolina's seminal case on the recognition of divorces obtained in foreign countries). The Mayer court noted the full faith and credit clause of the United States Constitution had no application to foreign judgments. See Mayer, 311 S.E.2d at 663. The court also noted a court could recognize a foreign divorce based on principles of comity, but recognition of the divorce may be withheld when the foreign court lacked a sufficient jurisdictional basis or the divorce violated the public policy of the state. See id. at 663-64.

In applying principles of comity, the court found the divorce invalid on both jurisdictional grounds and public policy grounds. See id. at 664. The court noted the Dominican court had no jurisdiction over the parties because neither party had any connection with the Dominican Republic other than the wife's five-day stay there to obtain the divorce. See id. The court concluded by noting "The great weight of authority in this country is that divorces granted in foreign countries to persons who are domiciliaries of the United States are not valid and enforceable." Id. at 664. The court also concluded the Dominican divorce decree offended "this State's public policy against the hasty dissolution of marriages" embodied in the laws of North Carolina governing divorce which require "proof that the parties had lived separate and apart for one year or more." Id. at 664-65; see N.C. Gen.Stat. Ann. § 50-6 (West 2009).

In this case, both Claimant and her second husband were residents of North Carolina at the time of the purported divorce in the Dominican Republic, and apparently thereafter, and the Dominican divorce decree even specified as much. The evidence indicates the parties went to the jurisdiction solely for the purpose of obtaining a divorce. Thus, we believe a North Carolina court would conclude the Dominican divorce decree is invalid on jurisdictional grounds. In addition, we believe a North Carolina court would find that the Dominican divorce in this case is against North Carolina's public policy requiring the parties to live separate and apart for a year or more before obtaining a divorce. See N.C. Gen.Stat. Ann. § 50-6; Mayer, 311 S.E.2d at 665. Therefore, we believe North Carolina would not recognize Claimant's Dominican divorce. This conclusion is also consistent with POMS GN 00305.170(A), which indicates a divorce is likely invalid when the evidence indicates neither party was a resident of the country in which the divorce was granted and a party went to the jurisdiction solely for the purpose of obtaining a divorce.

CONCLUSION

We believe a North Carolina court would conclude the Dominican divorce is invalid and Claimant is not unmarried. Therefore, an SSA adjudicator could not find Claimant eligible for widow's insurance benefits under section 202(e) of Act as a surviving divorced wife on the account of NH.

Sincerely,
Mary Ann S~

Regional Chief Counsel
By:______________________
Haila N. K~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505005036
PR 05005.036 - North Carolina - 07/17/2009
Batch run: 07/17/2009
Rev:07/17/2009