FOREIGN DIVORCE DECREES: CONSEQUENCES AND PROBLEMS CONFRONTING AGENCY EMPLOYEES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00375R000200120008-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 9, 2016
• Document Release Date: August 14, 2001
• Sequence Number: 8
• Publication Date: November 26, 1969
• Content Type: MF

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OGC Has Reviewed I
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 notentitled
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.
a decree procured by any one of the following three methods:
4. ? The term "Mexican divorce," is generally understood to include
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The first method hereinafter termed the '',i-party
Divorce" is one in which the plaintiff personally appears in Mexico
nM-ww.4a 11...
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-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.
5. It can be stated unequivocally that the "mail order divorce"
is not recognized by any American jurisdiction. The a es holding
such a divorce void from the beginning, not just voidable, are legion.
See Mexican Divorce - A Survey,, 33 Fordharn 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. .,.....e...,,~.??...some c.a~~"
n ases 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. Zd 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 courts (N. Y. Domestic Relations Law Section 170,
effective September 1, 1967), placing ,a cloud upon 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 seen-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 married relying upon the Mexican 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 Sune 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
Lon g will v. United States, 17 Ct. Cl. 788 (1881) and Charles v.
United States, 19 Ct. Cl. 316 (1884).
More specifically, the Comptroller General (B-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.)
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
on account of such marital relationship. These cases have involved en-
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titlcment 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
sa.nic whether the Mexican divorce was of the "mail order" (B- 164737,
1 .l~ t ust 1968), "one-party" (45 Comp. Gen. 155 (1965)), or "bi-party"
(36'Comp. Gen. 121 (1956)) variety. Further, even in the case of a
decree obtained by domiciliaries of New York, the Comptroller
G,,~tioral has said that after September 1, 1967, because of the uncertainty
ui section 250 added to the Domestic Relations Law of New York, the
Ro,cnstiel case no longer will be viewed as constituting a judicial deter-
mination of the validity of a Mexican divorce.. 47 Comp. Gen. 286 (1967).
y:; 4' t,; United States District Courts pursuant to 28 U.S.C. 1346(2) and 1491.
of a, lawful spouse litigated in the Court of Claims of the United States and
of their right to have their entitlement to increased allowances on account
10. As to the question of a U. S. court determining the validity
of the particular Mexican divorce, the Comptroller General has recog,
nixed that a state court would not grant a declaratory judgment on the
validity of the divorce, and therefore has advised the interested parties
',;3U ;Camp. Gen. 121 (1956), B-166987, 16 June 1969.
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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 -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.
13. The next problem area involves the distribution of death
benefits of a deceased employee who remarried 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 BEG 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.
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will, pursuant to state statutory precedence which generally begins with
!~I,;'!;i th'a ~:~R>rvivino annuse" Of decedent_
'i`Ij!`.li! 'decedent is distributed either by the will of decedent or if there is no
I I 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.
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
ins cried. For example, a state may not recognize the validity of certain
divorces obtained in Mexico. The wife whose husband lived in that state
may"collect benefits on her husband's record. Taken from J. K. Lasser
. institute, Your Social Security and Medicare Guide, Simon and
Schuster, New York, 1968, p. 56.
rise of UBLIC and WAEPA, the estate of the decedent receives the
decedent and how and when such marriages were terminated. In the
': FEGLI claim elicits information concerning prior marriages of the
17. An employee may designate any beneficiary he desires with
rcga.rd 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
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,
Immigration 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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STATINTL
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 divorces 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 a roval of the Director
for retention of his employment status. 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,
ase 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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STATINTL
26. In summation, the foreign divorce decree, in particular the
. employment. ; In the second instance, the Agency employee who remarries
is ,confronted with the loss, of increased allowances on account of such
marital relationship. With regard to this particular problem the under-
ii Ih tfor reasons totally unrelated to any benefits derive from Government_
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-
inentd status or accept the employee's resignation.
24. While an employee need not seek approval to retain employ-
prior to marrying a U. S. citizen, Agency regulations require that
t:irtr:c.^inployec subsequently submit information concerning the new spouse,
u i ,icli is reviewed for security purposes. It is suggested
t. iat: 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.
?f,rxican divorce, is fraught with a host of unfavorable consequences which
I CD
continue even after the death of the party or parties to the divorce. In
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 ts 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. S. 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
Office of General Counsel
EA/Ex. Dir. -Compt.
DDS
D/Fin
Cjudit Staff
PDD/Pers-SP
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OFFICE OF FEDERAL EMPLOYEES' GROUP LIFE INSURANCE
4 EAST 24TH STREET
John Byrne tells me that he discussed the Mexican divorce question
with you again and that you agreed each case would have to stand on
its merits but that the best advice in such cases is to be certain
that a Designation of Beneficiary is completed by your employee.
Enclosed is a copy of a letter from our files that bears on this
subject which I thought you might like to see.
Very truly yours,
R. D. Zink
Manager
March 6, 1970
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*No
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Sec. *2
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 SENDER WILL CHECK CLASSIFICA-ION TOP AND BOTTOM
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ACTION
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PREPARE REPLY
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COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks:
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HANDLE AS V V) ONLY
copy being sent to C/SAS -AVGA U*.
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FORM N0. 237 Use previous editions
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 R IC
UNCLASSIFIED CONFIDENTIAL SECRET
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
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Attn: Mr
2
3
4
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ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
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RECOMMENDATION
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RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
Per request of OP, forwarded herew h
your files is a copy of a letter from
to his lawyer - reflecting his intent to proceed
with the divorce.
1 1 ,FE raonnel
CC: OP
FOLD HERE TO RETURN TO SENDER
FROM: NAME. ADDRESS AND PHONE NO.
DATE
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UNCLASSIFIED CONFIDENTIAL
1Q00*21M7
SECRET
FO1RM _NO. 2.17 Use previous editions (40)
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