TN 29 (05-01)

A. Policy -- determining validity of a divorce

1. Validity

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. Assume a divorce is valid unless:

1. Its validity is challenged by another claimant or potential claimant who offers a reasonable basis for his/her contention of invalidity; or

2. Reliable evidence raises reasonable doubt as to its validity; or

3. Evidence indicates that at the time of the divorce, neither party was a resident of the country or State in which the divorce was granted; or

4. The divorce allegedly took place in a country whose laws do not permit an absolute divorce.

2. Invalidity

A divorce which is valid in the State where it is granted will usually be recognized in other States; this is not true if the court of the State that had granted the divorce did not have jurisdiction. 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.

Laws in certain countries do not permit absolute divorce. See GN 00307.280 for more specific information on those countries.

3. Questionable Validity

a. General

A divorce granted in a jurisdiction in which neither party is domiciled is not valid. Where the plaintiff in a divorce action goes to another jurisdiction solely for the purpose of obtaining a divorce, and did not intend to make his /her home there, the validity of such divorce is questionable. Therefore, undertake development outlined in GN 00305.170B.

b. Foreign Divorce

If a divorce is granted by a court in a foreign country where at least one of the parties was domiciled as required, do not question the validity on this basis alone. If there is an indication that either party to a foreign divorce had some other connection with that country, assume that he/she was a resident of that country, and no additional development is required.

However, question the validity of a foreign divorce 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. In such cases, undertake additional development for residence under GN 00305.170B.

B. Procedure -- determining validity of a divorce

1. When Development Is Required

1. Resolve any question about the validity of a divorce if:

   • the claimant is filing for benefits as a divorced spouse, a surviving divorced spouse, or a surviving divorced mother/father; and

   • another claimant has filed as the spouse of the worker by a later marriage; or

   • the rights of children by a later marriage are involved; or

   • the claimant cannot meet the requirements for entitlement as a divorced spouse but might be able to establish entitlement as the legal spouse or widow(er).

2. The divorce is questioned because of the jurisdiction of the court; or

3. There is a technical defect in the proceedings (e.g., decree was not recorded properly, court costs not paid, etc.).

2. Development Required

1. If a divorce is questioned under GN 00305.170B.1.a. - GN 00305.170B.1.b., get a certified copy of the divorce decree and the following information:

   • Identity of the plaintiff in the divorce proceeding;

   • Domicile of the parties before the divorce;

   • How long each party lived in the State or foreign country where the divorce was obtained;

   • Reason for establishing residence in that place;

   • Whether the defendant was given notice of the divorce proceeding and how; and

   • Whether the defendant filed an answer in the proceeding or appeared in court.

   If the divorce in question is the worker's, also get this additional information:

   • Whether there was any property settlement; and

   • Whether either party to the divorce remarried.

2. If a divorce is questioned under GN 00305.170B.1.a. or GN 00305.170B.1.c., get a certified copy of the divorce decree and the following:

   • A statement from the clerk of court as to whether the records substantiate the allegation as to the defect; and

   • Certifications of the pertinent court record entries.

3. Legal Opinion Needed

Follow the procedures in GN 01010.800 ff. for possible submittal to the RCC any case in which there is a question as to whether the divorce is invalid or ineffective.