The claimant petitioned to have the marriage declared invalid at its inception. Illinois court granted the annulment declaring the marriage invalid dating back to the date of marriage. SSA would not necessarily be bound by the order of annulment in this case since it may not have been contestsed by parties with opposing interests. The agency looks to see whether the order was consistent with State law. There is nothing on the face of the petition or the order that suggest that the decree was inconsistent with State law. The agency would not award divorced spouse's benefits where the claimant obtained an annulment of marriage from the number holder (rather than obtaining a divorce), unless the annulment was essentially the same as a divorce.

BACKGROUND

The claimant married the number holder in 1975. In 1992, the claimant petitioned the court to declare the marriage invalid. The claimant advised SSA that she sought an order of invalidation (the Illinois equivalent of an annulment), rather than a divorce, because she believed this would enable her to retain property that she owned when she and the number holder first married.

The claimant alleged in her petition to state court that the marriage should be invalidated because it took place the same day that she and the number holder obtained their marriage license and because she did not sign the marriage license. Alternatively, she asserted that the marriage should be declared invalid because the number holder “lacks the capacity to consent because of mental incapacity and because of the influence of drugs” and that she herself “was induced to enter marriage by duress and by fraud involving the essentials of marriage.”

There is no indication that the number holder contested the claimant’s petition. In February 1992, the court granted the annulment, declaring the marriage invalid dating back to the date of marriage. The claimant alleges that she was unable to “pursue” the property she owned prior the marriage, however, because she allegedly became disabled within two weeks after the court order invalidating the marriage.

DISCUSSION

To be entitled to divorced spouse’s benefits, an individual must, among other things, be both divorced from the number holder and also have been validly married (or in a putative marriage or deemed valid marriage) to the number holder for at least 10 years immediately before the date the divorce became final. 42 U.S.C. §§ 402(b)(1), 416(d); 20 C.F.R. § 404.331; POMS RS 00202.005(A); 00202.075. Thus, even before we reach the issue of whether the marriage to the number holder may have been valid for some purposes before it ended, we must find that the claimant is “divorced” from the number holder. Here, the claimant was not divorced from the number holder, but rather obtained an annulment of her marriage to the number holder.

The statute, regulations, and POMS all require that an individual be “divorced” to be entitled to divorced spouse’s benefits. See 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a), (a)(1); POMS RS 00202.005(A); see also POMS GN 00305.085 (while an individual may be entitled to divorced spouse’s benefits based on a putative marriage, “[d]ivorced putative spouse’s benefits cannot be paid based on an annulment or separation.”); POMS PR 06215.030 (PR 96-001) (to be eligible for divorced spouse’s benefits, an individual must be “divorced,” and an annulment will not substitute for a divorce); POMS RS 00202.040(A) (stating that eligibility for spouse’s benefits ends if the marriage to the number holder ends in a divorce “unless the spouse can be entitled to divorced spouse’s benefits,” and also ends if the marriage ends in an annulment, without suggesting potential entitlement to divorced spouse’s benefits).

A decree of annulment that is the legal equivalent of a divorce under state law may establish a basis for entitlement for divorced spouse’s benefit. In SSR 69-1, SSA determined that an annulment could be treated as a divorce because the annulment in that case ended a marriage that was valid at its inception, and the decree was entered because one party became insane after the inception of the marriage. Since New York law described an annulment to apply to situations where the marriage never came into existence, an annulment granted on the basis circumstances arising after the inception of the marriage was essentially a dissolution of the marriage, rather than a declaration that the marriage never came into existence. See also POMS GN 00305.120 (suggesting that an annulment may terminate a valid marriage, but this would usually be called a divorce). In our case, by contrast, the claimant alleged legal criteria that would render the marriage invalid at its inception. In fact, she intentionally pled the requirements of a declaration of invalidity (i.e., annulment) because she wanted the marriage to be declared invalid from its inception, in order to realize the property benefits of such an order.

SSA would not necessarily be bound by the order of annulment in this case because it may not have been actually contested by parties with opposing interests. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1340 (6th Cir. 1973)). In such circumstances, SSA generally looks to see whether the order was consistent with state law. See SSR 83-87c; POMS PR 06305.016 (PR 07-158). Here, some of the bases she alleged—that the marriage was invalid because it took place before the three-day waiting period and because the claimant did not sign the license—were clearly insufficient to support an annulment under state law because neither of these actions was required under the law in effect at the time the marriage took place. See 89 ILCS §§ 5, 7 (1966) (did not include any requirement that parties to marriage sign license); 40 ILCS § 207 & historical note (1980) (showing waiting period was not implemented until 1977) . However, the other bases the claimant alleged in her petition—that the number holder lacked capacity and that she herself was induced to enter the marriage by duress and fraud involving the essentials of the marriage—were (and are) legally sufficient reasons for granting a decree of invalidity. See 750 ILCS 5/301(1). There is nothing on the face of the petition or the order that would suggest that this decree was inconsistent with state law. It is possible that, if the number holder had actively contested the action, he could have produced evidence (particularly with respect to timeliness) that might have resulted in a different outcome. However, no such allegations have been made, and in any event, at this point, the claimant would likely be estopped from challenging the validity of the annulment since she herself intentionally sought the annulment, rather than a divorce, and she obtained certain property rights by virtue of the decree (even though she claims she never actually took advantage of those rights because she allegedly became disabled). Compare In re Paulius, 475 N.E.2d 1006, 1008 (Ill. App. 1985) (party accepting the benefits of a divorce decree may be stopped from later challenging the validity of that decree). Accordingly, it appears that the annulment order in this case was consistent with state law, and therefore generally should be accepted by SSA. See SSR 83-37c; POMS PR 06305.016 (PR 07-158).

CONCLUSION

In sum, SSA would not award divorced spouse’s benefits where the claimant obtained an annulment of her marriage from the number holder (rather than obtaining a divorce), unless the annulment was essentially the same as a divorce—i.e., it terminated a marriage valid at its inception—or the order of annulment was legally insufficient to support an annulment. Here, the claimant petitioned to have the marriage declared invalid at its inception, and the petition and order are consistent with the legal requirements for an annulment of a marriage invalid at its inception. Therefore, the claimant cannot be entitled to divorced spouse’s benefits.

Donna L. C~

Regional Chief Counsel, Region V

By: ___________

Suzanne D~

Assistant Regional Counsel

Where the Court order was not genuinely contested by parties with opposing interests, SSA is not bound by the decision but should determine independently whether the judgment entered was consistent with prevailing State law. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its determination establishing the marriage and awarding spousal benefits.

You have asked whether an invalidity-of-marriage judgment entered on May 24, 2006, and relating to the marriage between numberholder, James E. R~, and spouse's benefits recipient, Norma M. C~, would have any effect on Norma's continued eligibility for spouse's benefits on James's account. As discussed below, we conclude that, under Social Security Ruling (SSR) 83-37c (G~ v. R~), the Agency should not give the judgment for invalidity of marriage dispositive weight, but should independently determine whether the judgment entered was consistent with prevailing state law. We further conclude that, because there is no indication in the judgment or other documents of record that the state court made the required findings necessary for a valid annulment or dissolution of marriage, the judgment was not consistent with prevailing state law. As such, the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.

BACKGROUND

The record contains an apparently official marriage certificate from the Commonwealth of Puerto Rico indicating that, in November 1967, James and Norma were married. You indicated that James and Norma separated some time after the marriage, and that James subsequently married three additional times.

In March 2005, the Agency established the marriage, and awarded spousal benefits to Norma on James's account. James then submitted a signed statement to the Agency denying that he had married Norma, and he asked for an "original signed form to prove that it was not my signature and not me." At some point thereafter, the marriage certificate described above was added to the file.

Some time later, James filed a petition in Illinois State court seeking to have the marriage declared invalid. The petition indicated that James was aware of Norma's award of spousal benefits, and asserted that Norma's "claim" was fraudulent. Based on the petition, the Cook County Circuit Court issued a judgment for invalidity of marriage, finding that "the purported marriage ceremony between the parties on November 2, 1967, in Aguadilla, Puerto Rico," was "null, void, and invalid ab initio." The judgment indicated that Norma was notified of the proceedings by publication, but that, according to James, she lived out of state and her whereabouts were unknown.

DISCUSSION

As you know, to be entitled to spouse benefits, a claimant must be the legal spouse of a numberholder entitled to RIB or DIB. POMS RS 00202.001(A)(1), (C). And, the claimant will be found to be the legal spouse of the numberholder if it is determined that she is validly married to the numberholder under the state law of the numberholder's domicile at the time that the application is filed. POMS RS 00202.001(A)(1). Here, Norma was found to be James's legal spouse and was awarded spouse's benefits.

These benefits stop when the marriage to the numberholder ends by divorce (unless the spouse is entitled to divorced spouse's benefits) or the marriage to the numberholder is annulled. POMS RS 00202.040(A). The validity of the divorce or annulment is assessed by considering the law of the numberholder's domicile at death or at the time the application was filed, which, in this matter, is Illinois. POMS GN 00305.170.

The judgment for invalidity of marriage found that the parties' marriage was null, void, and invalid ab initio. However, because this state court domestic relations order was not genuinely contested by parties with opposing interests (in that Norma did not appear), the Agency must determine whether the order was consistent with prevailing state law. SSR 83-37c (Gray v. Richardson~); POMS PR 04805.025 Michigan (A. PR 07-097) (applying SSR 83-37c to an uncontested annulment judgment); POMS PR 04805.016 Illinois (A. PR 97-004) (applying SSR 83-37c to an apparently uncontested order vacating a divorce decree); P~ v. S~, 898 F.2d 578, 580-81 (7th Cir. 1990) (holding that "the validity of a marriage for purposes of the Social Security Act depends not on the contents of an ex parte [divorce] order by a state trial court, but on what the highest court of the state would do with that order if it were challenged"); see also T~ v. A~, 1998 WL 597643 at **2 (7th Cir.) (recognizing applicability of SSR 83-37c to state court paternity judgment).

Under Illinois law, the grounds for declaring a marriage to be invalid are (1) that a party lacked the capacity to consent to the marriage or was induced to enter the marriage by force, duress, or fraud; (2) that a party lacked the ability to consummate the marriage; (3) that a party aged 16 or 17 years did not have parental or judicial consent; or (4) that the marriage was prohibited (e.g., bigamy). 750 Ill. Comp. Stat. Ann. 5/301 (West 2007). The ground for invalidity must be shown by a preponderance of the evidence, and, in addition, depending on the grounds for the declaration of invalidity, various time limits apply-ranging from 90 days after learning of the ground up to 3 years after the death of the first party to die. 750 Ill. Comp. Stat. Ann. 5/302 (West 2007). Although James asserted in his petition that he never married Norma and thus that her claim was fraudulent, he does not allege that he was fraudulently induced to enter a marriage, which could be a basis for a declaration of invalidity. And, the state court judgment fails to indicate any valid basis for invalidity. Moreover, there is no indication in either the petition or the judgment that the petition was filed within the requisite time limit. Under these circumstances, it is not clear that the state court judgment was consistent with prevailing state law, and thus the Agency is not bound by the state court judgment of invalidity. POMS PR 04805.016 Illinois (A. PR 97-004).

Although we have been unable to locate any definitive law on point, it is possible that the judgment could also operate as a divorce decree for purposes of entitlement to Agency benefits, but, again, only if the judgment and/or other evidence of record showed that the court's decision was consistent with state law. POMS PR 04805.025 Michigan (A. PR 07-097). In Illinois, a judgment for dissolution of marriage requires either a showing of fault, or that the parties have lived apart for more than 2 years, that irreconcilable differences have caused the irretrievable breakdown of the marriage and that efforts at reconciliation have failed or would not be in the best interests of the family. 750 Ill. Comp. Stat. Ann. 5/401(a) (West 2007). But, neither the decree nor any other evidence of record shows that one of these grounds was satisfied. Thus, the Agency also should not accept the state court judgment as a dissolution of marriage.

Because the judgment does not appear to satisfy the prevailing state law requirements for a declaration of invalidity or a dissolution of marriage, the Agency is not bound by the judgment. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its March 2005 determination establishing the marriage and awarding Norma spousal benefits.

CONCLUSION

As discussed above, we conclude that the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.

Donna L. C~

Regional Chief Counsel, Region V

By: ___________

Todd D~

Assistant Regional Counsel

SSA is not bound by a State court decision which: 1. was not genuinely disputed by parties with opposing interests and 2. does not provide the factual basis for its findings to determine whether the decision is consistent with State law.

You asked whether the Social Security Administration is bound by an Illinois trial court order that vacated a divorce decree two years after the insured spouse had died. The claimant, Ms. T~, seeks widow's benefits. Based on the facts provided us, we believe the trial court's decision is not binding on the agency. We also believe that Ms. T~ should be given the opportunity to provide more information regarding the trial court's decision.

FACTS

Ilia T~ and Alice S~ (aka Annette) were married in Chicago in 1962. In 1964, the Circuit Court of Cook County, Illinois dissolved the marriage of Iliat and Alice T~. Ms. T~ said that the "T~" divorce decree applied to her marriage, but provided no explanation for the difference in the last names.1_/ In 1988 and in 1991, Ms. T~ applied for social security benefits and represented that she and Mr. T~ were divorced in Chicago on December 30, 1964.

Mr. T~, who was domiciled in Illinois, died in 1992. After he died, Ms. T~ petitioned the state court to vacate their divorce decree. In 1994, the Circuit Court of Cook County vacated the decree, finding that Ms. T~ had never received notice and that Mr. T~ had committed fraud upon the court. One month after the divorce was vacated, Ms. T~ applied for widow's benefits contending she had always lived with her husband and had had no idea that he had filed for divorce. She said she found the divorce decree after he died in 1992.

DISCUSSION

A Social Security applicant is the spouse of an insured, deceased individual, if the courts of the state in which the decedent was domiciled at the time of his death would find a valid marriage. 42 U.S.C. § 416(h) (1) (A) (i). The agency is bound by a state court decision if

1) An issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls with the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

See SSR 83-37c; Gray v. Richardson, 474 F.2d 1370, 1373-74 (6th Cir. 1973; see also Haas v. Chater, 79 F.3d 559, 562 (7th Cir. 1996) (suggesting Seventh Circuit might follow Gray).

According to the facts provided here, the state court's decision is not binding on the agency for two reasons. First, Ms. T~ has not shown that her request to invalidate the divorce decree was genuinely contested. As stated above, the agency is not bound by a state court's decision about an issue unless parties with opposing interests genuinely disputed it. If the agency has not already done so, it should provide Ms. T~ the opportunity to produce evidence showing that another party appeared in court and opposed her request to vacate the divorce decree. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (placing burden on claimant to prove case was contested).

Second, Ms. T~ has not provided the factual basis for the trial court's findings that she did not receive proper notice of the divorce proceeding and that her husband committed fraud upon the court. The agency needs the underlying facts to determine whether the trial court's decision is consistent with the law that would be enunciated by the Illinois Supreme Court. See SSR 83-37c; Gray, 474 F.2d at 1373-74. Again, if the agency has not already done so, it should ask Ms. T~ to provide more information about the trial court proceedings.

If Ms. T~ does not show that the trial court proceeding was genuinely contested and consistent with state law, the agency is not bound by the trial court's decision. The agency must then itself predict whether the Illinois Supreme Court would vacate the divorce decree on the basis of fraud, lack of notice, or any other defense Ms. T~ raises. See Parker v. Sullivan, 898 F.2d 578, 580 (7th Cir. 1990). The agency has the authority to determine marital status for purposes of entitlement to social security benefits. Id.

CONCLUSION

Based on the facts before us, we believe the state court's decision to vacate the divorce decree is not binding on the agency. If the agency has not already done so, however, it should ask Ms. T~ to provide evidence showing that a party with opposing interests genuinely contested vacating the divorce decree. She also should provide the facts that supported the trial court's decision, so the agency can determine whether that decision would comport with the law that would be set forth by the Illinois Supreme Court. If Ms. T~ cannot show that the vacation of the divorce decree was genuinely contested and was consistent with state law, the agency is not bound by the court order, and may make its own determination about marital status.

1_/ For purposes of this memorandum, we are assuming that the difference in last names is simply a typographical error. Ms. T~ apparently has not alleged that the divorce decree applies to parties other than her and her husband.

DIVORCE — EFFECT OF VACATION OF DECREE — ILLINOIS

The Secretary need not and should not follow a State Court ruling vacating a divorce on the basis that deferred proceedings to deal with property and alimony never took place thus rendering the entire proceeding invalid, where such a ruling is not genuinely contested, the Court lacks jurisdiction and the ruling is not consistent with the law of the State as interpreted by the State's highest court. Procedurally, the failure to follow through on such deferred proceedings does not always render the entire proceeding invalid. In addition the doctrine of estoppel to challenge the validity' of a divorce decree from which the claimant derived benefit and the presumptions of the validity of the last marriage precludes a finding that the original divorce decree was invalid. (J~, John L., ~ — RAV (G~) to ARC, 08/05/85.)

By memorandum dated March 25, 1985, you have asked whether claimant, Diana G. J~ the legal widow of the deceased numberholder, who received disability benefits, notwithstanding a 1977 divorce decree. The decree was vacated in 1984, after the numberholder's death. In our opinion, claimant is not his widow, but his divorced ex-wife.

Background Facts

The pertinent facts are as follows. Claimant and the numberholder were married in 1967. In 1975, claimant filed for divorce. Both parties were represented by counsel. 1_/ Shortly thereafter, the numberholder was disabled by a gunshot wound and began receiving benefits.

In May and June, 1977, a decree of divorce was entered, and all other matters — alimony, child support, property — were deferred to a second hearing. In February 1978, claimant married one James S~ In March, 1984, claimant was advised by her legal counsel 2_/ that the 1977 divorce was invalid because of the bifurcated divorce procedure: since the alimony and property hearing had never been held, the entire proceeding was reportedly dismissed. Claimant was advised to dissolve her apparently bigamous marriage to James S~, which she reports, but has not documented, she did.

The numberholder died in July, 1984. Claimant promptly asked the court to dismiss her divorce proceeding. 3_/ The court refused, but entered an August, 1984 order vacating the 1977 divorce judgment. Subsequently, in November, 1984, the remaining entire proceeding was dismissed for lack of prosecution. After that, the numberholder's employer, from whom claimant apparently had claimed spousal death benefits, petitioned the court to reinstate the proceeding and rescind the vacating of the 1977 divorce. 4_/ The employer argued that 1977 ruling could not be rescinded. Claimant and the employer eventually settled, and the matter remains as it was in November, 1984.

Discussion

A. Effect of State Court Ruling

As a preliminary matter, we consider whether the Secretary must follow the state court ruling vacating the 1977 divorce. We conclude that she need not.

In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), adopted as SSR 83-37c, the Court of Appeals for the Sixth Circuit held that although the Secretary is not bound by a state trial court decision in a proceeding to which she was not a party, she is not free to ignore it in making Social Security determinations if four requirements are met: 1) an issue involved in a claim for social security benefits has been previously determined by a court of competent jurisdiction; 2)the issue was genuinely contested before the court by parties with opposing interests; 3) the issue falls within the category of domestic relations law; and 4) the state court ruling is consistent with the law as enunciated by the state's highest court. See Tony M~, ~, RA V (W~/G~) to ARC-Programs (Washingtonn SSA V (12/12/83), and prior opinions cited therein.

The 1984 ruling vacating the 1977 divorce fails to meet Gray on three counts. First, the matter was not genuinely contested. No one appeared on behalf of the numberholder's estate or heirs. Although the numberholder's employer appeared to oppose the vacating of the divorce, it did so only afterwards, and its arguments were never considered by the court as the parties settled. Moreover, the employer was seeking to protect its own interests, not those of the numberholder. 5/

In addition, the court lacked jurisdiction. Where one spouse dies before a bifurcated divorce proceeding is completed, the action is abated unless the remaining issues (e.g., alimony) had been previously decided but not reduced to judgment. In re Marriage of Davies, 95 Ill.2d 474, 448 N.E.2d 882, 885 (1983); In re Marriage of Walters, 129 Ill. App.3d 1040, 473 N.E.2d 580, 583 (1985). "'Claimant's proceeding does not fall within the exception. Id.

A third reason why the Secretary cannot follow the state court ruling is that it is not consistent with the law as established by the State's higher courts. The inconsistency is demonstrated in the discussion below.

B. Validity of the 1977 Divorce

Claimant was advised that her 1977 divorce was invalid because the action was dismissed when the second hearing on property and alimony was never held. Were this true, however, there would have been no need to petition the court to vacate the divorce; indeed, claimant would have needed to ask that the proceeding be reinstated first. This did not occur.

Claimant asked the court to vacate the 1977 divorce on the ground that a bifurcated proceeding — divorce judgment, followed by separate ruling on property and alimony — was held invalid by In re Marriage of Cobh, 93 Ill.2d 190, 443 N.E.2d 541 (1982). In Cohn, the Illinois Supreme Court held that under the prior law in effect since lg77 (since amended to address Cohn) a bifurcated divorce proceeding is justified only by certain circumstances, which must appear from the record. Id. at 545. Claimant's case does not fall into any of the examples given by Cohn, and no other justification appears from the record that might be evaluated for whether it is sufficiently similar to those in Cohn.

Although the 1977 divorce thus appears invalid under Cohn, Cohn also makes clear that the usual requirement of a single proceeding is waived if there was no timely objection at the trial court level. Id. at 549. Thus, in Davies, supra, 448 N.E.2d at 884, and Walters, supra, 473 N.E.2d at 583, parties who had acquiesced in and accepted the benzol a improperly bifurcated divorce decree were held to have waived the objection.

Two other principles under Illinois law reinforce this result, and would separately require it. A party who obtains a divorce and thereafter accepts the benefits by remarrying is estopped from asserting the invalidity of the divorce. Levy v. Dickstein, 388 N.E.2d 97 (Ill. App. 1979). Similarly, Illinois applies a strong presumption in favor of the validity of the last marriage and the corresponding divorce of the preceding marriage. Gray v. Heckler, 721F.2d 41, 44 (2d Cir. 1983); Davis v. Califano, 603 F.2d 618, 622 (7th Cir. 1972); Baer v. Deberry, 175 N.E.2d 673 (Ill. 'App. 1961); Miller v. Williams, 161N.E.2d 42 (Ill. App. 1959). These principles serve public purposes: avoiding making the remarrying spouse a bigamist, legitimating children of the second marriage, and furthering basic notions of fairness. Id.

Claimant admits to her remarriage. She has not documented that she had it dissolved, nor would such action undermine the controlling application of the above public policies.

For the above stated reasons, claimant's 1977 divorce from the number holder is valid, and she is not his legal widow.

1_/ Claimant's first attorney was officially replaced by another in August, 1975. The first attorney, now disbarred, allegedly handled the divorce case is less than a straightforward manner, and claimant represents that she relied on this attorney's representations that she was nonetheless divorced. Although the first attorney was officially replaced in 1975, she continued to appear on behalf of claimant when the divorce decree was issued in lg77. Claimant's allegation — that she got the 1977 divorce without the numberholder being aware of it or receiving any papers — is technically not correct. Both the numberholder and his attorney were given notice in 1977 of the hearing at which the divorce ruling was issued, and a return receipt for certified service of the notice on the numberholder is in the file. In addition, any reliance on this attorney's statements appears not reasonable in light of the fact that this was not her attorney of record.

2_/ The advice came from claimant's first, disbarred attorney, now a "para- legal assistant" for another attorney who took over the first attorney's cases.

3_/ Claimant was represented by the attorney who took over the cases of the "paralegal assistant."

4_/ Claimant gave notice to the numberholder's attorney of record from 1975-1977, who advised the court that he no longer represented the number-holder.

5_/ We have advised on occasion that the absence of a contest does not preclude following the state court ruling where to insist on it is to ask the impossible, as where the numberholder/wage earner's family and the claimant do not dispute the legal relationship. This is not such a case. Moreover, even in such a case, although the Secretary should usually follow the state court ruling, she is not required to do so.