(Sanitized) PROBLEM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00375R000200130026-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 12, 2016
• Document Release Date: September 26, 2001
• Sequence Number: 26
• Publication Date: April 24, 1970
• Content Type: MF

OGC Has Reviewed
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OGC 70-0632'
24 April 1970
MEMORANDUM FOR: Director of Personnel
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
11 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.
Att.
STATINTL
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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.
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.
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:
2
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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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