TN 29 (05-01)

A. Policy — estoppel - general

1. Application and Effect

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. The estoppel principle may apply:

1. Where a divorce would not be valid under the law of the State of the worker's domicile;

2. Where an otherwise valid divorce obtained in or outside the State of domicile is not effective because of a defect in the proceedings (e.g., the judge did not sign the decree of judgment, the final decree was not entered, or court costs were not paid, etc.);

3. In Mississippi and North Carolina where the worker and the spouse separated without obtaining a divorce and the spouse remarried. Note : For claims adjudicated on or after 5/23/00, SSA recognizes the estopped spouse as the legal spouse of the worker. This is a change of position;

4. In Mississippi where the worker and the spouse separated without obtaining a divorce and the spouse lived with another individual. Note : For claims adjudicated on or after 5/23/00, SSA recognizes the estopped spouse as the legal spouse of the worker. This is a change of position;

5. In North Carolina where the separated spouse was living in adultery which was not condoned or refused to live with the worker and was not living with the worker at his/her death. Note: For claims adjudicated on or after 5/23/00, SSA recognizes the estopped spouse as the legal spouse of the worker. This is a change of position.

In such cases, the spouse is estopped from denying the termination of the marriage to the worker, and thus, from being considered the worker's spouse for Social Security benefit purposes, except, beginning 5/23/00, where estoppel is based on separation in Mississippi and North Carolina.

NOTE: Mississippi and North Carolina are the only States that recognize the concept of estoppel based on a separation rather than a divorce action.

2. When a Person is Estopped to Deny the Validity of a Divorce

A party may be estopped to deny the validity of a divorce if he/she:

1. Was the plaintiff in the divorce action;

2. Was the defendant and accepted the court's jurisdiction (e.g., personally appeared before the court or filed an answer contesting the action); or

3. Remarried after the divorce;

4. Accepted property, money, or a property settlement on the basis of the divorce decree; or

5. otherwise accepted or acted in recognition of the decree as valid (e.g., knew of the divorce and allowed it to stand unchallenged for a long time).

B. Procedure — estoppel - general

1. Development

Generally do not develop the validity of the divorce in determining the status of a spouse who is estopped (i.e., precluded) from denying the validity of a divorce from the worker. However, it may be necessary if the status of the worker's spouse by a later marriage is involved.

2. Legal Opinion

If the estoppel principle applies, check existing precedents. If a new opinion is needed, follow the procedures in GN 01010.800 ff. for possible submittal to the RCC.