MEXICAN DIVORCE PROBLEM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000100420012-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 14, 2016
• Document Release Date: October 28, 2002
• Sequence Number: 12
• Publication Date: April 24, 1970
• Content Type: MF

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0CC 70-0632
24 April 1970
SUBJECT; Mexican Divorce Problem
1. Attached is a commentary on the Mexican divorce
problem. This is based on the earlier OGC opinion but is
put in a format suitable for publication in some appropriate
form, either in the Support Bulletin or possibly even an
Agency notice. We leave it to you as to what should be
done about publication.
2. We would like to point out that just recently we
uncovered another Mexican divorce situation in the Agency
with both husband and wife being employees of the Agency.
Their divorce was obtained within the last few weeks and
on the advice of a Virginia attorney. It would seem that
possibly publication could forestall at least some of the
future cases. Also please note that in its present form
this is unclassified and it is to be hoped that it would be
published in such fashion to be of maximum usefulness.
STATINT
Deputy General Counsel
OGC Subject - DOMESTIC RELATIONS
OGC Chrono.
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MEXICAN DIVORCE - A HOST OF UNFAVORABLE CONSEQUENCES
The following commentary treats with the actual and potential
consequences and problems confronting employees who obtain foreign
divorces, in particular a "Mexican divorce."
The term "Mexican divorce" is generally understood to include
a decree procured by any one of the following three methods:
. The first method hereinafter termed the "Bi-party Divorce"
is one in which the plaintiff personally appears in Mexico and where
the defendant appears either in person in Mexico or through an attorney,
duly appointed by the defendant to appear in the action for him or her.
Y Next is the so-called "One-Party Divorce" where the plaintiff
appears personally. in Mexico, institutes an action for divorce and where
the defendant does not appear in person or through an attorney, but is
given notice of the proceeding by personal service or by publication in
the United States.
a The third method is the so-called "Mail Order Divorce"in
which either one or both parties appear in the action, but neither party
is physically present in Mexico at any time. The parties appear through
attorneys, whom they appoint by mail, and in due course receive a decree
from Mexico, also by mail.
It can be stated unequivocally that the "mail order divorce" is not
recognized by any American jurisdiction. The overwhelming majority of
states having ruled on the validity of the "one-party divorce" have held
the decrees to be invalid. Lastly, even the "bi-party divorce" has been
invalidated by some states having ruled on them. New York appears to
be the most notable exception, generally recognizing the validity of the
"bi-party" Mexican divorce.
The Mexican divorce has been the subject of considerable litigation.
This litigation can arise not only during the lifetime of the parties to the
divorce, but particularly upon the death of either party when determining
the lawful heirs to the decedent's estate. In addition to potential litigation
problems, the Agency employee who is a party to a Mexican divorce and
subsequently remarries is confronted with serious problems affecting his
or her entitlement to various government benefits while living and also
the distribution of benefits 'in the event of his or her death.
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Increased Allowances on Account of Marital Relationship
The Comptroller General has repeatedly held that the federal
Government is not estopped from challenging the validity of a foreign
divorce decree when its interests might be adversely affected. In
numerous decisions the Comptroller General has consistently held
that until a court of competent jurisdiction in the United States deter-
mines the validity of the particular Mexican divorce decree, a subsequent
marriage is of too doubtful legality to permit the Government to approve
increased allowances on account of such marital relationship. These
cases have involved entitlement to increased quarters and subsistence
allowances. Furthermore, these decisions have been the same whether
the Mexican divorce was of the "mail order, " "one-party, " or "bi-party"
variety. Even in the case of a "bi-party" decree obtained by domiciliaries
of New York, the Comptroller General has said that after September 1, 1967,
because of uncertainty raised by new sections of the Domestic Relations
Law of New York, the New York cases no longer will be viewed as con-
stituting a judicial determination of the validity of a Mexican divorce.
As to the question of a competent court in the U. S. determining
the validity of the particular Mexican divorce, the Comptroller General
has recognized that a state court would not grant a declaratory judgment
on the validity of the divorce, and therefore has advised the interested
parties of their right to have their entitlement to increased allowances
on account of a lawful spouse litigated in the Court of Claims of the United
States and the United States District Courts. It is evident, however, that
even this recourse is unavailable to many Agency employees.
Distribution of Death Benefits
The next problem area involves the distribution of death benefits
of a deceased employee who remarried after a Mexican divorce. The
Comptroller General, using the same rationale applied in the "increased
allowances" situation, recently disallowed a claim for a death gratuity
as "surviving spouse" of decedent. The decedent's previous marriage
had been dissolved by a Mexican divorce granted to his former wife.
The question raised is who is the lawful "surviving spouse"
entitled to decedent-employee's death benefits? The following are
instances in which this question is likely to arise:
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. Bureau of Employees' Compensation death benefits are
payable first to "the widow who was living with or dependent for
support upon the deceased employee at the time of his death, " or
"the widower who was dependent upon the deceased employee at
the time of her death. " The claim for BEC compensation on account
of death inquires not only as to the decedent's prior marriages, but
when and how they were terminated. It would appear, therefore, that
the claim itself would flag the fact of a Mexican divorce.
? Under Social Security even a divorced wife can get widow's
benefits under certain specified conditions and restrictions. If the
legality of the divorce is disputed, a wife may be able to collect
benefits without the specific conditions or restrictions if the courts
of the state in which her husband lived would hold that the couple were
still validly married.
. An employee may designate any beneficiary he desires with
regard to "unpaid compensation of a deceased civilian employee" and
also insurance benefits under FEGLI, UBLIC and WAEPA. However,
if there is no such designation, then as to the "unpaid compensation"
the "surviving spouse" takes the benefits. In the case of FEGLI, the
"widow or widower of the insured" takes the insurance benefits. The
FEGLI claim elicits information concerning prior marriages of the
decedent and how and when such marriages were terminated. In the
case of UBLIC and WAEPA, the estate of the decedent receives the
insurance benefits if there is no designated beneficiary. The estate of
a decedent is distributed either by the will of decedent or if there is no
will, pursuant to state statutory precedence which generally begins with
the "surviving spouse" of decedent.
The application for death benefits under the Civil Service
Retirement System elicits information concerning the decedent's prior
marriages and how and when said marriages were terminated. Once
again the question arises-as to who is the lawful "widow" or "widower"
for a survivor annuity? The same question arises under the CIA Retire-
ment Act.
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Immigration and Naturalization of Subsequent Foreign National Spouse
An additional problem area arises when the employee, after
obtaining a Mexican divorce, marries a foreign national. It is possible
that the alien spouse will be confronted with immigration problems,
especially where the Mexican divorce was of the "mail order" variety.
Even assuming that the alien-spouse clears immigration, it can be
stated unequivocally, in the case of a "mail order" decree, that the
preferential naturalization procedures available to a spouse of a U. S.
citizen will not be available to the alien-spouse. While there is some
doubt, it would appear that naturalization can eventually take place,
but only after five years of continuous domicile in the United States,
being physically present at least one-half of that time.
SUMMARY
In summation, the foreign divorce decree, in particular the
Mexican divorce, is fraught with a host of unfavorable consequences
which continue even after the death of the party or parties to the
divorce. In the first instance, there is the prospect of outside litigation
for reasons totally unrelated to any benefits derived from Government
employment. In the second instance, the Agency employee who remarries
is confronted with the possible loss of increased allowances on account
of such marital relationship. In the third instance, there is raised the
problem of who is entitled to the employee-decedent's death benefits as
surviving spouse. Finally, there are problems associated with the immi-
gration and naturalization of an alien-spouse of an employee who has
received a foreign divorce decree to dissolve a prior marriage. In the
final analysis, an employee would be well advised to avoid procuring a
divorce decree that presents so many unfavorable consequences.
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2 0 MAR 1970
MEMORANDUM FOR T#iE RECORD
SUBJECT: Effeqt of Mexican Divorces on Certain Statutory Benefits
This memorandum reports the results of a series of conversations
with the Director, Bureau of Retirement and Insurance, other representa-
tives in BRI and with the Office of Federal Employees' Group Life Insurance
concerning the action t1 at BRI and O/FEGLI would take in settling certain
statutory benefits when the situation involved a Mexican divorce.
Civil Service Retirement
BRI's current practice is to approve a survivorship annuity
to the widow of an employee who died in service or to the surviving
spouse of an annuitant who elected survivorship benefits even though
one of the parties had, prior to the current marriage, been a party
to a Mexican divorce. BRI presumes the validity of the current
marriage and where there is proof, e. g., marriage certificate of
-the current marriage, and no indication of any contest, the annuity
would be instituted. The thrust of BRI action is to approve the
annuity unless the current marriage is set aside by action in a court
of law. Even when there is a contest BRI requires the contesting
party to go to court and have the marriage set aside.
Health Benefits
BRI representative provided little guidance on this benefit and
merely indicated that it is up to the insurance carrier to decide who
qualifies as a family member for health benefit purposes. Thus, with
respect to the Agency's hospitalization plan, it is a matter for GEHA
and Mutual of Omaha to decide who qualifies as a family member.
Practically speaking, it is a matter for GEHA to decide since Mutual,
as in past situations, would agree with anything GE LA. decides to do.
O/FEGLI has a more strict procedure. When a claim is re-
ceived which shows somewhere in the documentation a prior divorce,
O/FEGLI requires the submission of a divorce decree. If the decree
is a Mexican decree, they will attempt to determine if both parties in
the divorce aetiA} were With44 the Mexican jurisdiction;
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1. If only one party went to Mexico and the other
party is not represented in person or by a legal representa-
tive, the claim is referred to O/FEGLI's Legal Division.
(It should be noted here that FEGLI is administered by the
Metropolitan Life Insurance Company. Hence, all of the
practices and procedures and even personnel associated with
O/FEGLI matters reflect the experience of Metropolitan. )
2. If the other party is represented in person or
by a legal representative, O/FEGLI will then examine the
law of the parties' domicile. If there is no legal prohibition
to settling the claim under the particular state law, O/FEGLI
will settle the claim.
3. If the claim is being contested on some basis which
could include a former spouse, O/FEGLI will interplead. They
will turn the proceeds of the death benefits over to a court and
let the court decide who is the proper beneficiary.
25X1A
Deputy Director of Personnel
for $peci;.l Programs
SECRET
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OCC 69-2413
26 November 1969
MEMORANDUM FOR; Director of Personnel
SUBJECT: Foreign Divorce Decrees: Consequences and
Problems Confronting Agency Employees
1. Your comments are solicited with regard to the questions,
suggested answers and proposals set forth herein.
2. A divorce decree issued by a foreign country is not,entitled
to full faith and credit under the U. S. Constitution. Its validity must
stand on the international principle of comity between friendly nations.
Comity looks to the moral necessity to do justice, so that justice may
be done in return: Under this principle, the courts of a U. S. forum
will recognize the foreign decree if satisfied that the foreign court had
jurisdiction over the parties or the subject matter, and provided further
that recognizing the decree, or the procuring of the same, does not
violate the forum's public policy. The "public policy," of a state is to
be found in the law of the state, whether found in its constitution, statutes
or judicial decisions.
3. The Mexican divorce, because it has been the subject of con-
siderable subsequent litigation, has made most lawyers cognizant of
the problems raised by foreign divorce decrees. For this reason and
because of past and current problems before this office involving Mexican
divorces, the following commentary treats with the consequences of such
divorces with specific reference to their applicability to employees of
this Agency.
4. The term "Mexican divorce," is generally understood to include
d,sr a Frio t rod 1?y z}y one of the fol],owing three methods:
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The first method hereinafter termed the ';, K,?,partj
Divorce!' is one in which the plaintiff personally appears in Mexicq
and where the defendant appears either in person in Mexico or
through an attorney, duly appointed by the defendant to appear in
the action for him or her.
Next is the so-called "Mail Order Divorce" in which
either one or both parties appear in the action, but neither party
is physically present in Mexico at any time. The parties appear
through attorneys, whom they appoint by mail, and in due course
receive a decree from Mexico, also by mail.
The third method is the so-called "One-Part v Divorce"
where the plaintiff appears personally in Mexico, institutes an action
for divorce and where the defendant does not appear in person or
through an attorney, but is given notice of the proceeding by personal
service or by publication in the United States.
5. It can be stated unequivocally that the."mail order divorce"
is not recognized ;lay any American jurisdiction. The cases holding
such a divorce void from the beginning, not just voidable, are legion.
See Mexican Divorce - A Survey,, 33 Fordham L. Rev. 449 (1965);
27B C.J.S. Divorce sec. 352. The overwhelming majority of states
having ruled on the validity of the "one-party divorce" have held the
decrees to be invalid. The rare exceptions are those cases where
there are extenuating circumstances--usually where the subsequent
"marriage" has been in existence and uncontested for many years and
there are children. Even these circumstances have not proved sufficient
to prevent some courts from invalidating the Mexican decree. Lastly,
even the "bi-party divorce" has been invalidated by some states having
ruled on them, In some cases one of the parties to the divorce has not
been estopped from subsequently contesting the decree. New York
appears to be the most notable exception, generally recognizing the
validity of the "bi-party" Mexican divorce. Rosenstiel v. Rosenstiel,
16 N. Y. 2d 64, 209 N. E. 2d 709, 262 N.Y.S. 2d 86 (1965), cert. denied,
384 U. S. 971 (1966). Subsequent to the Rosenstiel case, however, New
York enacted a. statute liberalizing the grounds for obtaining a divorce
through the New York courtp (N. Y. Domestic Relations Law Section 170,
e, fegtive $epte fiber 1, x.9,67), placing . Cloud }ipon the Rosenstiel decision.
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According to some legal writers it is impossible to foresee the
effect of the new divorce statute on future cases involving basically
the same facts as Rosenstiel. For citations and a thorough discussion
of the relevant cases supporting the statements of this paragraph, see
Mexicans For A Day: The Consequences Of A Mexican Divorce, Air
Force JAG Law Review, Vol. X, No. 4, page 23 (July-August 1968).
6. From the foregoing, it can readily be seer}?why subsequent
litigation contesting the Mexican divorce is not only possible but quite
probable. This litigation can arise not only during the lifetime of the
parties to the divorce, but particularly upon the death of either party
when determining the lawful heirs and legatees to the decedent's estate.
The following examples provide a sampling of the type of plaintiffs who
have in the past initiated such subsequent litigation and the nature of it:
The spouse who obtained the Mexican decree has in some courts been
successful in subsequently having the foreign decree declared void.
More often the defendant spouse in the divorce action is the plaintiff in
subsequent litigation to have it set aside, even in those cases where he
or she appeared and consented in the Mexican decree. This litigation
often takes the form of a new "divorce action" in the appropriate U. S.
forum and, in cases where the other spouse has remarried relying upon
the Mexican decree, the grounds for the new divorce action might be
"adultery." If the defendant spouse in the Mexican decree has not sub-
sequently obtained a valid U. S. divorce before the death of the other
party to the decree, he or she might contest the divorce in order to
share in the decedent's estate as the lawful spouse. Children of the
marriage dissolved by a Mexican decree have also contested the decree.
The plaintiff in one case sought to annul his marriage on the basis that
his spouse's previous marriage was still in effect as it was not dissolved
by the Mexican decree. In another case the plaintiff sought custody of
his children from his former spouse on the grounds that she had sub-
sequently married a man who had obtained a Mexican divorce to dissolve
his prior marriage, and therefore the former spouse was living in adultery
and an unfit mother. Last but not least, at the persuasion of a defendant
spouse in a Mexican divorce, there is the possibility, even though
improbable, of a state prosecuting as a bigamist the other spouse who
has marr3,e4 relying upon the Mex.can,decree.
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7. In addition to the potential prosecution and litigation
problems already enumerated, the Agency employee who is a party
to a Mexican divorce and subsequently remarries is confronted with
serious problems affecting his or her entitlement to various govern-
ment benefits while living.and also the distribution of benefits in the
event of his or her death.
8. The Comptroller General has repeatedly held that the federal
Government is not estopped from challenging the validity of a foreign
divorce decree when its interests might be adversely affected.
36 Comp. Gen 121 (1956); 44 Comp. Gen. 485 (1965); 45 Comp. Gen. 155
(1965). In an opinion rendered 16 June 1969, B-166987, the Comptroller
General stated:
Also, it is a well established rule of the accounting
officers of the Government that they will not, allow a claim against
the United States if there is substantial basis for doubt that a '
court of competent jurisdiction would allow the claim. See
Longwill V. United States, 17 Ct. Cl. 788 (1881) and Charles s v.
United States, 19 Ct. Cl. 316 (1884).
More specifically, the Comptroller General (P.164737, 1 August 1968)
has said:
Thus as a general rule, we have held that, where the
validity of a second marriage is dependent upon dissolution
of the first marriage by a divorce decree of a Mexican Court
and such divorce has not been recognized by a court of com-
petent jurisdiction in the United States, the marital status of
the parties is of too doubtful legality for us to approve increased
allowances on account of such marital relationship. Compare
,45 Comp. Gen. 155 (1965) and 47 Comp. Gen. 286 (1967).
(Emphasis added.)
on account of such marital relationship. These cases have involved en-
9. Therefore, in numerous decisions the Comptroller General
has consistently held that until a U. S. court determines the validity of
the particular Mexican divorce decree, a subsequent marriage is of too
doubtful legality to permit the Government to approve increased allowances
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titlement to increased rental and subsistence allowances, basic
allowances for quarters, and death gratuities for a surviving spouse.
While all these cases involve military personnel, there is ample
language to the effect that the holdings need not be restricted solely
to such personnel. More importantly, these decisions have been the
same whether the Mexican divorce was of the "mail order" (B-164737,
I Au,rust 1963), "one-party" (45 Comp. Gen. 155 (1965)), or "hi-party"
(3C (,,omp. Gen. 121 (1956)) variety. Further, even in the case of a
decree obtained by domiciliarics of New York, the Comptroller
6~?tw al has said that after September 1, 1967, because of the uncertainty
o:i section 250 added to the Domestic Relations Law of New York, the
?osenstiel case no longer will be viewed as constituting a judicial deter-
mination of the validity of a Mexican divorce. 47 Comp. Gen. 286 (1967).
10. As to the question of a U. S. court determining the validity
of the particular Mexican divorce, the Comptroller General has recog-
nized that a state court would not grant a declaratory judgment on the
validity of the divorce, and therefore has advised the interested parties
;:of their right to have their entitlement to increased allowances on account
of a. lawful spouse litigated in the Court of Claims of the United States and
(:'Ate United States District Courts pursuant to 28 U. S. C. 1346(2) and 1491.
36'',Comp. Gen. 121 (1956), B-166987, 16 June 1969.
V 11.' Inasmuch as the basis for granting differentials and allowances
to Agency, employees is set forth in the Standardized Regulations
'(Government Civilians, Foreign Areas) issued by the Department of State,
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the
Legal Advisor for Administration at the State Department. Lyerly advised
that in the first instance, State makes a point of advising its personnel
against obtaining foreign divorce decrees because of all the problems
associated with them and therefore, the problem rarely comes up. He
was well aware of the Comptroller General Decisions noted above and
advised that were such a case to come before State's legal office for deter-
mination, those Decisions would be binding. However, Lyerly responded
in the negative to the undersigned's question of whether State's personnel
department or accounting officers are under directives to be on the lookout
for foreign divorce decrees in requests for increased allowances on account
of marital relationship, and where there is such an indication, to refer the
matter to legal counsel for determination. Lyerly admitted that there
probably are cases where the increased, allowances are paid because
there is no awareness of or no attexYipt to determine the existence of a
Mexican divorce.
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12. A number of questions arise as a consequence of the fore-
going. Perhaps the Agency should take an affirmative step and advise
its employees in a headquarters and field notice of the probable serious
consequences of obtaining a foreign divorce decree and further advise
against such action, thereby establishing Agency policy on the matter.
After all, an existing legitimate concern of the Agency, because of
security implications, is the avoidance by its employees of unnecessary
litigation. Should the Agency require what the State Department
apparently does not--that the Office of Personnel look for and be aware
of foreign divorce decrees and when found, report the same to OGC for
further determination?. Perhaps the Agency, because of the very fact
of the added security problem, should require this type of scrutiny. In
any event, in those cases where the foreign decree is a known fact and
the matter presented to this office for determination, the Comptroller
General Decisions cited above are binding. On the other hand, are there
overriding security factors which would permit us in certain situations to
vary from those Decisions? For example, as indicated above, where the
Mexican divorce has not been contested by the parties having standing to
do so and the employee cannot obtain a declaratory judgment from a state
court, the only recourse left to the employee is to seek relief in the U. S.
Court of Claims or U. S. District Court. Assuming the employee is
under "commercial cover" he surely cannot seek this remedy. In such
cases where the employee's only legal recourse is denied because of his
cover employment, a serious problem is presented which must be resolved'
on a case by case basis. Perhaps the same rationale is equally applicable
to employees under only nominal State or military cover.
13. The next problem area involves the distribution of death
benefits of a deceased employee who i-.~tii arricd after a Mexican divorce.
The Comptroller General in B-166987, 16 June 1969 disallowed a claim
for six months' death gratuity as surviving spouse of decedent. The
decedent's previous marriage had been dissolved by a Mexican divorce
granted to his former wife. As in the cases previously cited, the
Comptroller General said:
Eligibility of survivors to receive the six months'
death gratuity is governed by 10 U. S. C..1447. That section
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(so far as applicable here) provides that such gratuity
shall be paid to or for the living survivor highest on the
following list: (1) surviving spouse; (2) children (including
stepchildren who were part. of the decedent's household at
the time of his death), in equal shares; and (3) certain per-
sons (including his parents) if designated by-him.
Since you claim the gratuity as surviving spouse it
.must be established that a valid marriage existed between
you and the decedent. It has long been held that where the
validity of a second marriage is dependent upon the dissolu-
tion of the first marriage by a divorce decree of a Mexican
court which has not been recognized by a court of competent
jurisdiction in the United States, the validity of the marital
status of the parties is too doubtful to justify approval by this
Office of payment of an allowance such as here involved.
It is important to note, that the decision does not discuss the type of
Mexican divorce obtained. Apparently, as in the other cases, the
"type" decree was not a relevant factor in the decision.
. 14. From the foregoing it can be seen that subsequent litigation
is probable. .The question raised is who is the lawful "widow" or "sur-
viving spouse" entitled to decedent-employee's death benefits? The
following are instances in which this question is likely to arise.
15. Bureau of Employees' Compensation death benefits are
payable first to "the widow who was living with or dependent for support
upon the deceased employee at the time of his death," or "the widower
who was dependent upon the deceased employee at the time of her death."
While the language would seem to preclude the former spouse who was a
party to the Mexican divorce unless there was continued support of said
former spouse by the decedent, there is also doubt whether the current
spouse is the lawful widow or widower. The claim for BEC compensation
on account of death inquires not only as to the decedent's prior marriages,
but when ,and how they were terminated. It would appear, therefore, that
the claim itself would flag the fact of a Ue.)dc divorce.
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16. Under Social Security even a divorced wife can get widow's
benefits under certain specified conditions and restrictions. If the
legality of the divorce is disputed, a wife may be able to collect benefits
without the specified conditions or restrictions if the courts of the state
in which her husband lived would hold that the couple were still validly
ma r.ried. For example, a state may not recognize the validity of certain
divorces obtained in Mexico. The wife whose husband lived in that state
m,11;1' collect benefits on her husband's record. Taken from J. K. Lasser
Institute, Your Social Security and Medicare Guide, Simon and
4schuster, New ,York, 1968, p. 56.
17. An employee may designate any beneficiary he desires with
regard to "unpaid compensation of a deceased civilian employee" and
also insurance benefits under FEGLI, UBLIC and WAEPA. However,
if there is no such designation, then as to the "unpaid compensation"
the "surviving spouse" takes the benefits. In the case of FEGLI, - the
"widow or widower of the insured" takes the insurance benefits. The
FEGLI claim elicits information concerning prior marriages of the
decedent and how and when such marriages were terminated. In the
rose ,of UBLIC and WAEPA, the estate of the decedent receives the
:insurance benefits if there is no designated beneficiary. The estate of
b. '.decedent is distributed either by the will of decedent or if there is no
uvill, pursuant to state statutory precedence which generally begins with
the ','surviving spouse" of decedent.
18. The application for death benefits under the Civil Service
Retirement System elicits information concerning the decedent's prior
marriages and how and when said marriages were terminated. Once
again the question arises as to who is the lawful "widow" or "widower"
for a survivor annuity? The same question arises under the CIA Retire-
ment Act.
19. It would appear that the Comptroller General Decision noted
above with respect to death benefits is binding upon the Agency in those
cases where it administers or assists in administering the benefits. In
the case of death benefits which can be substantial and unlike those cases
involving increased allowances, it is more likely that there will be a dual
claim for the decedent-employees' death benefits--that of the current
spouse and that of the former spouse involved in the Mexican divorce.
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20. An additional problem area arises when the employee,
after obtaining a Mexican divorce, marries a foreign national. The
first problem involves "immigration benefits" available to the foreign
national spouse. The following is taken from Gordon and Rosenfield,
Imxmig,ratio.Law and Procedure, Vol. I, Sec. 2.18 (1967):
In order to obtain exempt status, or to obtain
other immigration benefits available to a 'spouse,' there must,
of course, be a valid and subsisting marriage between the
parties.
Another factor which may impair the legality of
a marriage is the existence of legal impediments.... The
situation is complicated, of course, when one of the parties
has obtained a divorce of questionable soundness, such as a
Mexican mail order divorce prior to his remarriage. The
essential inquiry is whether the second marriage was regarded
as lawful at the place of its celebration. If the answer is
affirmative the marriage will be recognized for immigration
purposes. The immigration authorities ordinarily will not
question the validity of a divorce, whether granted in the United
States or in a foreign "country, where one of the parties was
physically present within the court's jurisdiction. (Emphasis
added.)
The marriage of an employee to a foreign national contracted in a foreign
country is registered with the Consulate General at the U. S. Embassy.
Lyerly, in the forementioned discussion with the undersigned, advised
that this registration is for immigration purposes to assist in procuring
the necessary documentation, and in no way purports to validate the
Mexican divorce'or subsequent marriage for any other purpose.
21. Only an alien who has been lawfully admitted to this country
for permanent residence can be naturalized. Under the Immigration and
Nationality Act of 1952, as amended (8 U.S.C. 1427), the alien- spouse
could be naturalized five years after being admitted for permanent
residence'-i. e., five years of continuous residence (domicile) in the
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United States, at least one-half of that time being physically present
within the United States. The requirement of "good moral character"
would probably not be a bar if the Mexican divorce were considered.
It was found in one naturalization case that when an alien making a
bona fide attempt to conduct himself within the law procured a Mexican
divorce without appearing personally and then entered into a marriage
in New Jersey, a denial of naturalization on the ground that the alien
was not of "good moral character" would not be justified. Petition of
Smith, 71 F.. Supp. 968 (D. N.J. 1947); see Dickoff v. ?Shaughnessy,
142 F. Supp. 535 (D. N. Y. 1956). Contra, Petition of DaSilva,
140 F. Supp. 596 (D. N. J. 1956).
22. A person who is married to a citizen of the United States
may become naturalized in the same way as any other alien as suggested
above under section 1427, or he or she may take advantage of special
naturalization exemptions that are granted to the spouse of a citizen of
the United States. These exemptions fall into two classes--under section
1430(a) the alien-spouse can be naturalized three years after the marriage,
having resided in the United States for one-half of that time, or under
section 1430(b) the alien-spouse can be naturalized soon after the marriage
upon declaration in good faith that he or she intends to reside abroad with
the citizen-spouse, and then reside in the United States when the citizen-
spouse returns. From past experience this office knows that the Natural-
ization Service will not, at least in the case involving a "mail order"
Mexican divorce, permit naturalization of the alien-spouse under either
of the above two special naturalization exemptions. Naturalization,
therefore, can take place only after five years of continuous residence in
the United States prior to application. Thus, when the citizen-employee
spouse is subject to assignment abroad, an undesirable situation arises.
23. Pursuant to Agency regulations an. employee, prior to
marrying a foreign national, must receive the approval of the Director
for retention of his employment status. HR 20-8a(l). The procedure
requires the employee to submit his resignation concurrent with the
request for retention of employment status. As a result of a current
case involving approval of retention of employment status following
marriage to a foreign national, it is proposed that the following require-
ment be exacted in future cases seeking such approval: If the employee
has previously been married, the Office of Personnel should ascertain
how, where and when the prior marriage was dissolved. If dissolved by
a foreign divorce decree, the case should be referred to the Office of
General Counsel for an advisory opinion based upon the facts of the
particular case. The purpose of this opinion will be to point out problems
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created by the particular foreign divorce decree and will constitute
additional information which the approving authority can take into
consideration in determining whether to approve retention of employ-
mnent status or accept the employee's resignation. STATINTL
24. While an employee need not seek approval to retain employ-
meel: prior to marrying a U. S. citizen, Agency regulations require that
Lb t:; employee subsequently- submit inform. g the new spouse,
~l a{clh is reviewed for security purposes. It is suggested
i hi it the same procedure as outlined in paragraph 23 -above 'be followed in
these cases.
25. There are probably other problems created by the Mexican
divorce that have not been raised here. One that comes, to mind is the
tax treatment accorded the divorced parties--both income and federal
estate tax treatment. Sufficient existing and potential pitfalls have been
raised, however, to make the point.
26. In summation, the foreign divorce decree, in particular the
`,t-xican divorce, is fraught with a host of unfavorable consequences which
arties to the divorce. In
or
th of the
art
th
d
ft
ti
e
con
p
p
y
ea
er
e
even a
nu
the first instance, there is the prospect of outside litigation or prosecution
ji,ll for reasons totally unrelated to any benefits derived from Government
a rigs
A
l
h
a ..aa
oyee W1 1W
gency emp
e
1.1 1, en -ip.LOym ent. In the second 1116 anc e, t
i s confronted with the loss of increased allowances on account of such
-
,
marital relationship. With regard to this particular problem the under-
signed has, in paragraph 12, raised certain questions and suggested some
answers. In the third instance, there is raised the problem of who is
entitled to the employee-decedent's death benefits as surviving spouse.
Due to the substantial nature of death benefits and the ever present
possibility of dual claims to those benefits, it is suggested that the
Comptroller General Decision cited in paragraph 13 is binding upon the
Agency in those cases where it administers or assists in administering the
benefits. Therefore, in any case where the employee-decedent was a party
to a Mexican divorce, it is suggested that the assistance and guidance of
this office be sought prior to the submission of any claim for, or the actual
payment of any death benefits. Finally, there are the problems associated
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with the immigration and naturalization of an alien-spouse of an
employee who has received a foreign divorce decree to dissolve
a prior marriage. The undersigned has proposed a new procedure
to be applied in situations where an employee seeks prior approval
to retain employment status after marriage to a foreign national
and also when submitting information concerning marriage to a
U. .5. citizen,- as set forth in paragraphs 22 and 23, respectively.
27. We remain at your disposal and offer our continued
assistance in this matter.
Signori
STATINTL
cc: EA/Ex. Dix. -Compt.
DDS
D/Fin
~C~/ udit Staff
t.DD/Pers-SP
ice.o Genera ounse
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TINTL
5 March 1970
MEMORANDUM FOR: Mr. Harry Fisher
SUBJECT: Mexican Divorce Problem
1. On the Mexican divorce problem, I do not believe it
appropriate that a formal memorandum be presented to Colonel
White for his approval and our concurrence.
2. 1 would like to see greater emphasis on notification to
people of the problems connected with a Mexican divorce when we
learn those specific situations. I think it should be pointed out to
Colonel White that the Agency does have an interest in these matters
since, out of any given number of Mexican divorce situations,
eventually we will have litigation which inevitably will pose security
problems because of the various cover situations in which our
employees are involved. Therefore, I feel it appropriate that we
request employees to take positive action to correct defective
Mexican divorces and that we institute follow-up systems to insure
that they do.
3. I discussed this problem at length with Ed Lyerly in
State Department. He indicated that where they learn of a Mexican
divorce situation they do alert the employee concerned, pointing
out the potential legal problems and urge them to take appropriate
action. They do not actively seek out Mexican divorce situations
and even where they find them they do not cut off allowances. In
one case, however, where an employee notified the Department
that he was leaving his station temporarily to procure a one-party
Mexican divorce, he was informed that this was not the proper
course of action; nevertheless, he obtained the Mexican divorce
and immediately remarried. In that case his allowances, because
of the wife, were cut off.
O&1-Adse
L OGC Subject - DOMESTIC RELATIONS
OGC rl~rgno
OGC: mks
Deputy enera Counsel,,
STATINTL1
I
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