Haitian divorce is valid in Massachusetts

 

            Posted on March 6, 2016  

              Haitian divorce is valid in Massachusetts



Q. 
Fifteen years ago, after several years of living separately, my then-husband, Alan, and I agreed to get divorced. By that time we each had been living with someone else. And we didn’t want to spend a lot of money paying Massachusetts lawyers to do what was needed to get divorced.

We saw an advertisement about getting a divorce in Haiti for a lot less money. So we paid about $1,000 to a Florida lawyer. He sent us forms, including one for a separation agreement, one for Al’s assent to Haitian jurisdiction, plus one for Al to hire a Haitian lawyer. We filled out the forms, signed them before a Notary Public, and sent them back to that lawyer.

That lawyer told me the Haitian divorce is valid upon entry. So my male companion, Bill, and I decided to get married in Haiti right after that divorce entered. The Florida lawyer took care of all the details. Bill and I flew to Haiti and stayed overnight in a nice hotel. The next morning there, Bill and I went to the court, met my lawyer, said yes to all the questions asked, and were divorced. Then Bill and I went to a nearby clerk’s office where we got married.

Bill died a year ago. I applied for Social Security benefits as his widow. Now the Social Security Administration claims our Haitian divorce was not valid because neither Al, nor I were domiciled there when that divorce was granted.

Will I lose out on those Social Security benefits?

A. 
There are several points.

• Even though neither you, nor Alan were domiciled in Haiti, by complying with and submitting to its law, your divorce is valid there.

• A lack of domicile is not the sole factor in determining validity. Yours was neither a mail order, nor a unilateral, a/k/a ex parte divorce.

• A divorce judgment terminates a marriage, not just for the two parties, but for everyone. And, once validly entered, a final judgment is not open to attack.

• Third, because you and Alan voluntarily participated, public policy prevents both of you from contesting the validity of that divorce.

• SSA has no greater right than you and Alan to contest the divorce. And, per Massachusetts General Laws chapter 208, section 39 - regarding the validity of foreign divorces - SSA has no standing to contest your Haitian divorce.

• SSA must comply with 42 United States Code section 416(h)(1)(b) that requires it to recognize a marriage if, at the time of the marriage, you and Bill both believed there was no legal impediment.

• When considering the validity of your marriage, per 416(h)(1)(A), SSA must follow the law of the state in which you and Bill lived, here, Massachusetts.

Why not give that SSA agent a copy of this column and suggest that, if he or she doesn’t agree you are entitled to survivor benefits, a supervisor be consulted.