The NH specifically asked for a divorce in the complaint on the grounds of desertion for a space of one year without reasonable cause. The Arkansas Chancery Court referenced an annulment in its decree. Arkansas courts use the term divorce and annulment interchangeable. Under Arkansas Code Ann. §34-1202 (1967), one of the circumstances which a divorce could be granted was esertion. The decree entered into by the NH and the claimant granted a divorce. Thus, the claimant meets the 10 year duration of marriage requirement for surviving divorce spouse benefits.

We are responding to your request for our opinion regarding the marital status of Annette Harrod D~ W~ (Ms. W~) and her entitlement to divorced widow's insurance benefits on the record of Jimmy N. D~ (number holder). You ask whether Ms. W~ and the number holder met the ten-year marriage duration requirement under federal law so as to entitle Ms. W~ to divorced widow's benefits on the account of the number holder.

Specifically, you ask whether the September 18, 1967, "Decree" of matrimony annulment between Ms. W~ and the number holder by the Arkansas Chancery Court could be considered a divorce a vinculo matrimonii.

Ms. W~ and the number holder were married twice. To meet the ten-year requirement, the term of the second marriage would have to be added to the term of the first marriage. In our opinion, the evidence presented establishes that the number holder and Ms. W~ were married for the requisite ten years so that she is entitled to divorced widow's benefits.

The Arkansas Chancery Court referenced an annulment in its September 18, 1967, "Decree." This "Decree" can, however, be considered a divorce a vinculo matrimonii. Thus, the period of time that the number holder and Ms. W~ were married for the second time, from May 1965 through September 1967, can be counted towards the ten-year requirement under the Social Security Act (Act) to entitle Ms. W~ to divorced widow's benefits on the account of the number holder.

As we understand the facts of this case, Ms. W~ and the number holder were first married on June 29, 1956, in Louisiana and divorced in Texas on January 11, 1965 (eight years, six months of marriage). They remarried in Louisiana on May 7, 1965. In August 1967, the number holder filed a complaint in Arkansas seeking a divorce on the ground that Ms. W~ had "willfully deserted and absented herself from the number holder for a space of one year without reasonable cause." On September 18, 1967 (two years and four months after the second marriage ceremony), the Arkansas Chancery Court issued a "Decree" ordering "that the bonds of matrimony subsisting between" the number holder and Ms. W~ "be, and the same are hereby annulled, set aside and shall be forever held for naught." The number holder died while domiciled in Louisiana in 1981. On July 11, 2005, Ms. W~ filed an application for divorced widow's insurance benefits in Texas.

To qualify for divorced widow's insurance benefits, Ms. W~ must have been the number holder's widow based upon a relationship described in the regulatory scheme. See 42 U.S.C. § 402(b). For purposes of receiving benefits on the account of a number holder, a divorced wife is defined as "a woman divorced from an individual but only if she had been married to such individual for a period of 10 years immediately before the date the divorce became effective." 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a)(2).

Divorce is "the legal dissolution of a marriage by a court." Black's at 494. The terms "divorce" and "divorced" refer to divorce a vinculo matrimonii. 42 U.S.C. § 416(d)(8). As noted above, divorce a vinculo matrimonii is "[a] divorce from the bond of marriage. A total divorce of husband and wife, dissolving the marriage tie, and releasing the parties wholly from their matrimonial obligations." Black's at 494.

To meet the ten-year requirement, the term of the second marriage between the number holder and Ms. W~ would have to count towards the ten-year durational requirement. The issue is, therefore, whether the September 18, 1967, "Decree" by the Arkansas Chancery Court was an annulment or whether it was a divorce. If it were a divorce, Ms. W~ could collect divorced widow's insurance benefits on the account of the number holder. If it were an annulment, the term of the second marriage would not count towards the ten-year durational requirement. To determine whether Ms. W~ was the number holder's divorced spouse for purposes of the Act, the Agency looks first to the laws of the state where the number holder was domiciled when he died, which in this case is Louisiana. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

We believe that Louisiana would give full faith and credit to the 1967 Arkansas Chancery Court "Decree." "Under the <http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=USCOARTIVS1&Find Type=L&AP=&mt=FifthCircuit&fn=_top&sv=Split&vr=2.0&rs=WLW5.10> U.S. Constitution, Article IV, Section 1, a court in Louisiana must give 'full faith and credit' to a judgment of a court in a sister state. A state may deny full faith and credit to a judgment rendered by a court of another state only when it is shown that the court which rendered the judgment lacked jurisdiction over that party or the subject matter." WellTech, Inc. v. Abadie, 666 So. 2d 1234, 1236 (La. Ct. App. 1996), citing Ault v. Bradley, 564 So. 2d 374 (La. App. 1st Cir. 1990), writ denied, <http://web2.westlaw.com/find/default.wl?DB=735&SerialNum=1990165396&FindType=Y&AP=&mt=FifthCircuit&fn=_top&sv=Split&vr=2.0&rs=WLW5.10> 569 So.2d 967 (La. 1990). "There is a general presumption that a court of a sister state had jurisdiction to render the judgment in the case before it, and it is incumbent upon the person attacking the judgment to show by clear and positive proof that the rendering court was without jurisdiction." Ault, 564 So. 2d at 377; see Raymond v. Raymond, 36 S.W.3d 733, 735 (Ark. 2001) (In Arkansas, the "general rule is that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court's power is void."). Thus, we must consider whether the Arkansas Chancery Court had jurisdiction to render the 1967 "Decree."

It appears that the Arkansas Chancery Court had jurisdiction to render the 1967 "Decree." In the complaint that the number holder filed in the Pulaski County Chancery Court, he alleged that he had been a resident of Pulaski County for more than sixty days, and that the cause of action had accrued within the last five years.

See <http://web2.westlaw.com/find/default.wl?DB=713&SerialNum=1992071985&FindTyp e=Y&AP=&mt=FifthCircuit&fn=_top&sv=Split&vr=2.0&rs=WLW5.10> Walker v. State, 827 S.W.2d 637, 639 (Ark. 1992) (subject matter jurisdiction is determined from the pleadings). This statement was consistent with Arkansas' 1967 statutory requirement to obtain a divorce. Under the statute, in addition to alleging a legal cause for divorce, the plaintiff had to prove that he was a resident in the state for sixty days prior to the commencement of the action as well as for three full months before the final judgment granting the decree of divorce. Ark. Code Ann. § 9-12-301 (1967). In addition, it does not appear that Ms. W~ ever objected to the Chancery Court's statement that she had entered an appearance and waived service of process of summons and time to answer. See e.g., Morehouse v. Lawson, S.W.3d , 2005 WL 768676 (Ark. Ct. App. April 6, 2005) (entry of appearance occurs with execution of waiver of corroboration of grounds for divorce); accord Ault, 564 So. 2d at 378 (a court has personal jurisdiction over a party when he or she participates in the proceeding by entering an appearance). Thus, we believe that the Arkansas Chancery Court had jurisdiction to render the 1967 "Decree." We must now consider whether the 1967 "Decree" was a divorce or an annulment.

In Arkansas, the subjects of marriage, divorce, and annulment are regulated by statute, and no divorce or annulment can be granted except for the causes mentioned in the statutes. See Phillips v. Phillips, 31 S.W.2d 134, 135 (Ark. 1930); Poore v. Poore, S.W.3d 912, 914-15 (Ark. Ct. App. 2001) (divorce can only be granted on a statutory ground). At the time of the 1967 "Decree," a marriage could be annulled "[w]hen either of the parties to a marriage is incapable, from want of age or understanding, of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction." Ark. Code Ann. § 9-12-201 (1967). In contrast, a divorce could be granted under nine circumstances, one of which was desertion. Ark. Code Ann. § 34-1202 (1967).

Although the Arkansas Chancery Court, on September 18, 1967, decreed that the marriage between the number holder and Ms. W~ was "annulled," we do not believe that the court granted an annulment of the marriage, rendering the marriage a nullity from the beginning. Rather, for the following reasons, we believe that the "Decree" was actually a grant of a divorce between the number holder and Ms. W~. First, Arkansas courts use the term divorce and annulment interchangeably, and divorce decrees may use annulment terminology. See Poore, 61 S.W.2d at 915 (in discussing the evidence necessary to establish indignities as a ground for divorce, Arkansas Appellate court used the term "divorce" interchangeably with the term "annulment"); Day v. Langley, 152 S.W.2d 308, 308 (Ark. 1941) (Arkansas Supreme Court upheld a divorce decree that was decreed as "annulled, set aside, and forever held for naught"). Second, the number holder specifically asked for a "divorce" in the complaint and the only ground set forth therein was that Ms. W~ "willfully deserted and absented herself from the [number holder] for a space of one year without reasonable cause."

At the time that the 1967 "Decree" was entered, one of the grounds for divorce in the state of Arkansas was "[w]here either party willfully deserts and absents himself or herself from the other for a space of one . . . year without reasonable cause." Ark. Code Ann. § 34-1202 (1967). Third, no grounds for annulment specified in Article 9-12-201 were present.

We note that our conclusion is consistent with guidance set forth in Social Security Ruling (SSR) 69-1. In SSR 69-1, the Agency recognized that whether a state court decree is called a divorce or an annulment is not dispositive.

The Agency noted the distinction between an annulment based upon an impediment to a marriage that existed at the time of the marriage ceremony as opposed to an annulment due to a condition arising after a valid marriage is contracted. SSR 69-1 involved an annulment based on circumstances arising subsequent to a validly contracted marriage. Accordingly, the annulment was treated as a divorce a vinculo matrimonii. Similarly, in the instant case, the "Decree" was based on desertion, which was a condition arising after a validly contracted marriage. Thus, assuming, arguendo, the "Decree" granted an annulment, it could be treated as a divorce a vinculo matrimonii pursuant to SSR 69-1.

Accordingly, the period of time that the number holder and Ms. W~ were married from May 1965 through September 1967 can be counted toward the ten-year marriage durational requirement. Thus, she is entitled to divorced widow's benefits on the number holder's account.

Tina M. W~
Regional Chief Counsel
By: _____________________
Julia D~

An entry of a judgment "nunc pro tunc" is designed to correct clerical errors and cannot be used by a trial court to change an earlier record in order to correct something that should have been done but was not. Under Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973), SSA is not bound by the nunc pro tunc order annulling the claimant's current marriage when all requirements have not been met. The order issued by the Circuit Case went beyond the grounds specified by statute and permitted by case law. Arkansas State law is very clear as to the proper grounds for annulment of a marriage, and obtaining or maintaining Social Security benefits under the Act is not a proper basis for annulment under Arkansas Code Ann. §9-12-201.

The purpose of this memorandum is to respond to your request for an additional opinion regarding the possible entitlement of Bobbie N. F~ to widow's insurance benefits under the Social Security Act (the Act) as Robert L. L~ surviving spouse. Ms. F~ was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. She subsequently married Lindsey F~ on June 12, 1997, but later obtained an Arkansas divorce effective the same day she applied for widow's insurance benefits. Two weeks later, the Arkansas divorce was itself annulled.

On February 26, 2004, we responded to your initial request for a legal opinion. At that time, you asked whether, under Arkansas law, Ms. F~'s April 11, 2001, divorce was valid until dissolved by the judgment of annulment, or whether the divorce would be considered completely void. After reviewing the facts and the relevant law, it was our opinion that the judgment of annulment rendered the 2001 divorce voidable. That is, once the court issued the order setting aside the April 11, 2001, divorce decree, the effect of the order was to place Lindsey and Bobbie F~ in the same position as if they had never been divorced. Consequently, Ms. F~ could not be considered unmarried at the time she applied for widow's insurance benefits on her first husband's record. Therefore, our Office stated that Ms. F~ did not qualify as Mr. L~ widow for entitlement to widow's insurance benefits under the Act. Your inquiry also asked if the dissolution of divorce was a terminating event for widow's benefits under the Act. Because we concluded that Ms. F~ did not qualify for widow's insurance benefits, it followed that she was not entitled to such benefits under section 202(e) of the Act. 42 U.S.C. § 402(e).

After our Office issued its legal opinion on this matter, Ms. F~ was notified on March 15, 2004, at the initial determination level, that her entitlement to widow's insurance benefits was going to be terminated. On April 8, 2004, she requested reconsideration of the decision. In her request for reconsideration, Ms. F~ stated that her marriage to Mr. F~ had been annulled. Apparently, on or about March 29, 2004, Mr. F~ had petitioned the Circuit Court of Crittenden County, Arkansas, to annul their marriage and "reinstate the decree of divorce" previously entered on April 11, 2001, returning both parties to the "single and unmarried status as of June 12, 1997." The basis for the marriage annulment was the fact that the Social Security Administration (SSA) was seeking repayment of Social Security benefits, and that both parties had mistakenly entered into the marriage under the belief that they could collect such benefits. The Court's order indicated that for "good cause shown" Lindsey and Bobbie F~ were entitled to annulment of their marriage of June 12, 1997. However, the order was signed by the judge on March 29, 2004, "Nunc Pro Tunc" to June 12, 1997, and entered on the docket on March 30, 2004.

Your request for an additional opinion asks whether the SSA is bound by the above-described order of annulment issued by the Circuit Court of Crittenden County. Additionally, if the Social Security Administration does not accept the court's decree annulling the marriage between Bobbie and Lindsey F~, would Ms. F~ still be ineligible for widow's insurance benefits on Mr. L~ record. Finally, you ask whether Ms. F~ would be potentially eligible for widow's benefits on Mr. F~'s record.

After reviewing the facts presented and relevant law, as detailed below, we believe that the Social Security Administration is not bound by the March 30, 2004, annulment order, which resulted from a deliberate attempt by Lindsey and Bobbie F~ to manipulate the judicial process in order to secure Social Security benefits. Because the legitimacy of the March 30, 2004, order annulling the marriage between Lindsey and Bobbie F~ is questionable, we still believe Ms. F~ does not qualify as Mr. L~ widow for entitlement to widow's insurance benefits under the Act. Our February 26, 2004, opinion clearly stated that Ms. F~ was not unmarried at the time she filed for widow's insurance benefits on Mr. L~ record. No credible evidence has been presented to our Office that would change our conclusion on this matter. Finally, we believe your last question as to whether Ms. F~ would be potentially eligible for widow's benefits on Mr. F~'s record to be premature because he is still living.

As we understand the facts, on January 24, 2001, Ms. F~, age sixty-three, filed for Title II retirement benefits. At the time of the application, Ms. F~ stated she had been twice married and was currently married to her second husband, Mr. F~. They married on June 12, 1997, when she was fifty-eight years old. However, on April 11, 2001, Ms. F~ filed a claim for widow's insurance benefits under the Act on the record of her first husband, Mr. L~. As previously noted, Ms. F~ was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. Ms. F~ stated that her marriage to Mr. F~ ended in divorce on April 11, 2001, and that she was unmarried at the time she filed for widow's insurance benefits on her first husband's record. We assume from the Master Beneficiary Record submitted with the initial request for legal opinion that some award of benefits was made based on these representations by Ms. F~.

On March 6, 2003, Lindsey F~ filed for Title II retirement benefits. At the time he filed, Mr. F~ stated that he was married to Ms. F~, but that they previously had been divorced for about thirty days. The records provided in connection with the initial request for legal opinion show that the April 11, 2001 divorce decree was set aside by the Court on April 24, 2001, indicating that, at most, Bobbie and Lindsey F~ had only been divorced for about two weeks.

Ms. F~ was notified on March 15, 2004, at the initial determination level, that her entitlement to widow's insurance benefits was going to be terminated. On April 8, 2004, she requested reconsideration of the decision. In her request for reconsideration, Ms. F~ stated, "My marriage to Lindsey F~ has been annulled and never existed." See SSA Form 561-U2 (Request for Reconsideration dated April 8, 2004). In conjunction with filing her request for reconsideration, Ms. F~ submitted a copy of an "Order of Annulment" from the Domestic Relations Division of the Circuit Court of Crittenden County, Arkansas. The order indicated that for "good cause shown" Lindsey and Bobbie F~ were entitled to annulment of their marriage of June 12, 1997. However, the order was signed by Circuit Judge David B~ on March 29, 2004, "Nunc Pro Tunc" to June 12, 1997, and entered on the docket on March 30, 2004.

SSA requested that Ms. F~ produce a copy of the complaint for annulment of marriage filed with the Court. In response to the request, Ms. F~ produced a petition for annulment of marriage as well as a waiver of service and entry of appearance both filed with the Circuit Court of Crittenden County on or about March 29, 2004. Together, all the documentation indicated that Mr. F~ had petitioned the court to annul their marriage and "reinstate the decree of divorce" previously entered on April 11, 2001, returning both parties to "single and unmarried status as of June 12, 1997." Specifically, Mr. F~'s petition stated:

Defendant [Ms. F~] herein previously applied for Social Security benefits. The Social Security Administration is now seeking repayment of such benefits, contending she should not have married.

Plaintiff [Mr. F~] desires to have the marriage annulled as Defendant mistakenly entered into the marriage under the belief she could collect Social Security benefits.

As the defendant in the case, Ms. F~ entered her appearance by mail. Additionally, she waived any further service of process and the necessity for corroboration of the grounds specified in Mr. F~'s petition for annulment of their marriage, thereby allowing the court to issue its decree in time to be made part of her request for reconsideration.

As you know, one requirement for entitlement to widow's insurance benefits under the Act is that a claimant be unmarried at the time of filing, unless remarriage was after age sixty. 42 U.S.C. § 402(e)(1); 20 C.F.R. §§ 404.335(e) (2004). In order to determine the claimant's marital relationship to the insured individual, we look to the law of the state where the insured had a permanent home when he died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344-45. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Mr. L~ died in 1988 while in Montana, but Agency records provided with your initial request for legal opinion demonstrate that he was domiciled in Arkansas. Therefore, we will still apply Arkansas law./

The State of Arkansas is a party to every marriage, and marriage is a contract that should not be dissolved capriciously./ See e.g. Napier v. Napier, 237 Ark., 159, 160, 371 S.W.2d 841, 842-43 (Ark. 1963). The subjects of marriage, divorce, and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute. See e.g. Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134, 135 (Ark. 1930)(page citations to the Arkansas Reporter not available).

In Arkansas, a marriage may be annulled under certain circumstances. See Ark. Code Ann. § 9-12-201 (current through 2004)./ A marriage may be annulled:

When either of the parties to the marriage is incapable from want of age or understanding of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction. Id.

Notwithstanding the imprecise statutory language asserting that the marriage shall be declared void if any of the above conditions are fulfilled, the Arkansas Supreme Court has interpreted this language to mean that, under these circumstances, the marriage would be considered voidable; that is "practically valid" until set aside by a court decree, but once set aside, the marriage is considered a nullity from the beginning. See Vance v. Hinch, 222 Ark 494, 496-99, 261 S.W.2d 412, 414-15 (Ark. 1953)(Arkansas Supreme Court interpreting prior Ark. Stat. Ann. § 55-106, which was a precursor to Ark Code Ann. § 9-12-201); see also Ragan v. Cox, 210 Ark 152, 159, 194 S.W.2d 681, 685 (Ark. 1946)(Arkansas Supreme Court interpreting Pope's Dig. § 9021, which was a precursor to Ark. Stat. Ann. § 55-106)./

Nunc pro tunc literally means "now for then." Birdwell v. Davis, 206 Ark. 445, 175 S.W.2d 992, 994 (Ark. 1943)(page citations to the Arkansas Reporter not available). It is based upon a power inherent in a court to make the record show at a later date what originally occurred. Id. The concept of nunc pro tunc is found under Rule 60 of the Arkansas Rules of Civil Procedure, which deals with obtaining relief from a judgment, decree, or order. See Ark. R. Civ. P. Rule 60(a), (b)(2004); see also Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. 136, 139, 114 S.W.3d 179, 182 (Ark. 2003)(referring to Rule 60(b) of the Arkansas Rules of Civil Procedure as a restatement of nunc pro tunc judgments or orders); Lord v. Mazzanati, 339 Ark. 25, 28-30, 2 S.W.3d 76, 78-79 (Ark. 1999)(referring to Rule 60(a) of the Arkansas Rules of Civil Procedure as a restatement of nunc pro tunc judgments or orders). Specifically, Rule 60 states:

Rule 60(a): Ninety-day limitation. To correct errors of mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

Rule 60(b): Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. Id.

Any correction of the record nunc pro tunc must be, ". . . auxiliary to the original action and not be by an independent action." Birdwell v. Davis, 175 S.W.2d at 994. The fact an order was labeled nunc pro tunc is not dispositive; rather, a reviewing court must look beyond the form of judgment to determine its true nature. See Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. at 141. A nunc pro tunc order is designed to correct a clerical error, but the trial court cannot change an earlier record to correct something that should have been done, but was not. See id. at 139 (a nunc pro tunc order is designed, ". . . to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken"); Griggs v. Cook, 315 Ark. 74, 78, 864 S.W.2d 832, 834 (Ark. 1993).

Finally, SSA is not bound by a decision in a State trial court a proceeding to which the Agency is not a party. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973); Social Security Ruling 83-37c. However, SSA is not free to ignore the adjudication of a State trial court where the following four prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the laws enunciated by the highest court in the State. Id.

Applying the highlighted principles to the facts of this case, we believe that SSA is not bound by the March 30, 2004, nunc pro tunc order from the Circuit Court of Crittenden County annulling the June 12, 1997, marriage between Lindsey and Bobbie F~. While the issue falls within the general category of domestic relations law and tangentially deals with an issue in a claim for Social Security benefits as determined by a State court of competent jurisdiction, the other two prerequisites specified under Gray v. Richardson have not been met. Id. It is clear from the documentation provided to our Office that the proceeding at issue was not genuinely contested before the State court by parties with opposing interests. This is documented by the fact that Ms. F~ waived any necessity for the corroboration of the grounds specified in Mr. F~'s petition for annulment of their marriage.

Additionally, our Office does not believe the resolution by the State trial court is consistent with the law enunciated by the highest court of the State. As previously noted in our opinion, the subjects of marriage, divorce, and annulment are regulated by statute, and no annulment can be had except for the causes mentioned in the statute. See e.g. Phillips v. Phillips, 31 S.W.2d at 135. Arkansas State law is very clear as to the proper grounds for annulment of a marriage, and obtaining or maintaining Social Security benefits under the Act is not a proper basis for annulment under Ark. Code Ann. § 9-12-201 (or any other code section identified by our research). In fact, the 2004 annulment order from the Circuit Court of Crittenden County annulling the marriage between Lindsey and Bobbie F~ runs counter to the often stated rule in Arkansas that marriage is a contract that should not be dissolved capriciously./ See e.g. Napier v. Napier, 237 Ark. at 160. In our opinion, annulling a marriage contract so that one of the parties can secure Social Security benefits is capricious. Id.

Essentially, the March 30, 2004, nunc pro tunc order from the Circuit Court of Crittenden County, annulling the F~'s 1997 marriage, was an attempt to reinstate the April 2001 divorce decree from the Chancery Court in Mississippi County, which itself had been annulled by that Court two weeks after it was issued. Our reading of Rule 60 of the Arkansas Rules of Civil Procedure requires that nun pro tunc orders relate to a prior judgment, decree, order, or "other parts of the record and errors therein" issued by that particular court, and not to judicial actions undertaken by other courts situated in different counties. Ark. R. Civ. P. Rule 60(a), (b).

The Arkansas Supreme Court has been clear that nunc pro tunc orders, especially those orders issued past the ninety-day time limit, are designed to correct clerical errors and cannot be used by a trial court to change an earlier record in order to correct something that should have been done but was not. Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. at 141; Griggs v. Cook, 315 Ark. at 78; Birdwell v. Davis, 175 S.W.2d at 994. It is our view that the March 30, 2004, order issued by the Circuit Court of Crittenden County annulling the F~'s 1997 marriage goes well beyond those grounds specified by statute and permitted by case law. Consequently, the Commissioner is not bound by the 2004 order from the Circuit Court of Crittenden County.

Therefore, consistent with SSA's statutes and regulations, Bobbie F~ does not qualify for widow's insurance benefits on her first husband's record because she was not unmarried at the time of application. Finally, we believe that your last question regarding whether Ms. F~ would potentially be eligible for widow's benefits on Mr. F~'s record is premature because he is still living.

Tina M. W~
Regional Chief Counsel
By: _____________________
Thomas C. S~

The annulment of divorce entered into by the NH and the claimant did not continue their prior marital relationship. Although annulment of divorce in Arkansas ordinarily renders a divorce a nullity from the beginning, in this case the claimant married another man after her first divorce from the NH. A new marital relationship between the NH and the claimant began with the judgment of annulment of the divorce, and ended with their subsequent divorce. Thus, the claimant does not meet the 10-year duration of marriage requirement for surviving divorced spouse's benefits.

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of Janice W~ to widow's insurance benefits under the Social Security Act (the Act) as Bobby R. L~'s surviving divorced spouse. As you know, under section 216(d)(2) of the Act, a surviving divorced wife must have been married to the number holder for 10 years immediately prior to the final date the divorce decree became effective. 42 U.S.C. § 416(d)(2). Ms. W~ was initially married to Mr. L~ from 1965 until their divorce in 1974. They obtained an annulment of the divorce in 1979. However, during the intervening years, Ms. W~ married and divorced her second husband. You asked whether under Arkansas law the 1979 annulment order began a new marital relationship or whether it continued the 1965 marital relationship. For purposes of entitlement to widow's insurance benefits as a surviving divorced spouse, it is our opinion that the 1979 annulment of divorce entered into by Ms. W~ and Mr. L~ did not continue the 1965 marital relationship. Consequently, Ms. W~ would not have been married long enough to meet the 10 year requirement for entitlement to widow's insurance benefits as a surviving divorced spouse.

As we understand the facts of this case, Ms. W~ was married to Mr. L~ from January 23, 1965, until their divorce on August 28, 1974. They had two children together. The divorce was granted in the Chancery Court of Washington County, Arkansas. Ms. W~ subsequently married Guy Trammel on March 25, 1975, and they divorced on December 13, 1977. They had no children together. That divorce was granted in the Chancery Court of Independence County, Arkansas. Mr. L~ received disability benefits under Title II of the Act from July 1978, until his death in January 1992, while domiciled in Arkansas. On April 6, 1979, Ms. W~ and Mr. L~ obtained a joint annulment of the 1974 divorce. The annulment was obtained in the same Chancery Court that initially granted their 1974 divorce. Mr. L~ and Ms. W~ then divorced again for the final time on November 21, 1988, in the Chancery Court of Stone County, Arkansas. This divorce was granted after the parties had represented to the court that they had been married since January 1965. Ms. W~ then married and divorced her third husband in 1989.

Specifically, you asked whether, under Arkansas law, the 1979 annulment order began a new marital relationship effective on April 6, 1979, or whether it continued the 1965 marital relationship despite Ms. W~' intervening marriage to and divorce from Mr. T~. For the reasons stated herein, it is our opinion that the 1979 annulment of divorce entered into by Ms. W~ and Mr. L~ did not continue the 1965 marital relationship. To find that Ms. W~' marriage to Mr. L~ continued uninterrupted from 1965 to 1988, would effectively mean that the Chancery Courts in Washington and Stone County sanctioned a bigamous second marriage between Ms. W~ and Mr. T~ from 1975 through 1977. This would clearly be against Arkansas law, and we believe public policy, because Arkansas explicitly bars bigamous marriages and has made such conduct a criminal offense. Thus, we do not believe that State law would require such a result. Recognizing that Ms. W~' second marriage to Mr. L~ spanned a time frame from April 6, 1979, through November 21, 1988, she would not have been married long enough to meet the statutory 10 year requirement for entitlement to widow's insurance benefits as a surviving divorce spouse.

In order to determine the claimant's marital relationship to the insured individual, we look to the law of the state where the insured had a permanent home when he died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344-345 (2003). Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. As previously noted, Mr. L~ died in 1992 while domiciled in Arkansas. Therefore, we will apply Arkansas law. Id.

Arkansas invests State circuit courts with the power to dissolve a marriage contract based upon certain conditions. See Ark. Code Ann. § 9-12-301 (1987, current through the 2003 Reg. Sess.).

Divorce is a creature of statute and can only be granted when the statutory grounds have been met. See Harpole v. Harpole, 10 Ark. App. 298, 301-02, 664 S.W.2d 480, 482 (Ark. App. 1984). Arkansas law also provides that a court may annul a divorce if the parties seeking annulment file a joint, verified petition in the court that rendered judgment. See Ark. Code Ann. § 9-12-321 (“[t]he proceedings for annulling a final judgment for a divorce from the bond of matrimony shall be a joint petition of the parties, verified by both parties in person, filed in the court rendering judgment, upon which the court may forthwith annul the divorce”).

The annulment of a divorce under Arkansas law is a discretionary act by the court. See Dunn v. Dunn, 222 Ark. 85, 87-88, 257 S.W.2d 283, 285 (Ark. 1953) (the State is a silent third party to every divorce proceeding including annulments). We have previously interpreted annulment of divorce in Arkansas as a voidable act, but once such judgment is rendered by the court, the divorce is considered a nullity from the beginning (reference: our prior legal opinion No. 03-1070 - Arkansas annulment of divorce under Ark. Code Ann. § 9-12-321 - NH Robert L~, dated February 26, 2004)._1/

Arkansas law expressly forbids bigamy and a bigamous marriage is considered void. See Ark. Code Ann. § 9-12-101 (1987, current through 2003 Reg. Sess.) (a subsequent marriage before the dissolution of a prior marriage prohibited); see also Jessie v. Jessie, 53 Ark. App. 188, 183, 920 S.W.2d 874, 877 (Ark. App. 1996) (bigamous marriage considered void from its inception, but burden of proving the invalid marriage rests on the party attacking its validity); Evatt v. Mier, 114 Ark. 84, 169 S.W. 817, 819 (Ark. 1914). Bigamy in Arkansas is also a crime. See Ark. Code Ann. § 5-26-201 (1987, current through the 2003 Reg. Sess.) (a person commits bigamy as a criminal offense if, being married, he purports to marry another person).

Applying the law to the facts of this case, when Ms. W~ and Mr. L~ had their joint petition for annulment of divorce granted by the Chancery Court of Washington County on April 6, 1979, the judgment would normally have related back to the divorce decree dated August 28, 1974, and made it a nullity from the beginning. See Ark. Code Ann. § 9-12-321. They would have been considered as having never been divorced, and the annulment would have had the effect of continuing their marriage uninterrupted since 1965. Id.

However, a critical difference under the facts of this case is that subsequent to Ms. W~' divorce from Mr. L~ in 1974, and prior to her annulment of that divorce in 1979, she was legitimately married to and divorced from Mr. T~. Importantly, while the Chancery Court of Washington County handled both the 1974 divorce and 1979 annulment proceedings between Ms. W~ and Mr. L~, there is no evidence that the court was aware of Ms. W~' intervening marriage and divorce from Mr. T~.

To find that Ms. W~' marriage to Mr. L~ continued uninterrupted from 1965 to 1988, would effectively mean that the Chancery Courts in Washington and Stone County sanctioned a bigamous second marriage between Ms. W~ and Mr. T~ from 1975 through 1977. This would be against State law and public policy given that, as previously discussed, Arkansas explicitly bars bigamous marriages and has made such conduct a criminal offense. See Ark. Code Ann. § 9-12-101 (a subsequent marriage before the dissolution of a prior marriage prohibited); see also § 15-26-201 (a person commits bigamy as a criminal offense if, being married, he purports to marry another person).

The Arkansas Supreme Court has recently reiterated that it recognizes both the waiver doctrine of inconsistent positions and a related concept of judicial estoppel. See National Enterprises, Inc. v. Lake Hamilton Resort, Inc., --- F.3d ---, 2004 WL 98623 *6 (Ark. Jan. 22, 2004) (citing to Dupwe v. Wallace, --- SW.3d ---, 2004 WL 36241 (Ark. Jan. 8, 2004) (page references not available); see also State of Tennessee v. Barton, 210 Ark. 816, 821-22, 198 S.W. 2d 512, 515-16 (Ark. 1947) (the doctrine against inconsistent positions has been developed in Arkansas to also apply to divorce proceedings, among other cases). Both doctrines are designed to maintain the integrity of the judicial process. Id. Under the doctrine of inconsistent positions, a party litigant is not permitted to avail herself of inconsistent positions during litigation concerning the same subject matter, nor play fast and loose with the court. Id. The doctrine of inconsistent positions can apply to positions taken outside of the pending court action as long as it relates to the same subject matter at issue (e.g. a litigant participating in the early stages of a bidding process and then filing a legal action seeking to repudiate the entire process when the final figure was not to his liking). Id.

Judicial estoppel prohibits one party from manipulating the courts through inconsistent positions to gain advantage. Id. The elements of judicial estoppel are (1) a party must assume a position clearly inconsistent with a position taken in an earlier case, or with a position taken in the same case; (2) a party must assume the inconsistent position with the intent to manipulate the judicial process to gain unfair advantage; (3) a party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; and (4) the integrity of the judicial process of at least one court must be impaired or injured by the inconsistent position. Id. The difference between the concepts apparently rests on the premise that the waiver doctrine of inconsistent positions applies to the same subject matter which forms the basis for the pending litigation before a court, whereas judicial estoppel can apply to inconsistent positions taken before different courts with the intent to manipulate the judicial process to gain unfair advantage. Id.

Under the facts of the present case, Ms. W~ has run afoul of the doctrine of judicial estoppel. In the December 13, 1977, divorce decree filed in the Chancery Court of Independence County, both Ms. W~ and Mr. T~ successfully maintained to the Court that they were married on March 25, 1975, and last lived together on June 1, 1977. However, in the joint petition for annulment of divorce filed in the Chancery Court of Washington County on April 6, 1979, Ms. W~ and Mr. L~ inconsistently stated to the Court, " … both parties have complied with the Court's order and for the past three years, these petitioners have been residing together and have conducted their affairs and have raised their children as husband and wife, and both parties are desirous of continuing their marital relationship as it was prior to August 28, 1974 [date of the divorce], as husband and wife” (emphasis added).

It is not possible that Ms. W~ and Mr. L~ could have resided together, conducted their affairs, and raised their children as “husband and wife” for the three years preceding their 1979 petition for annulment as they alleged to the Washington County Chancery Court because Ms. W~ was married to Mr. T~ from 1975 to 1977. It appears that Ms. W~ may have manipulated both chancery courts to gain unfair advantage. Such intent may be inferred from the facts. The integrity of the Chancery Court of Washington County was impaired by Ms. W~' inconsistent positions.

Finally, the Arkansas rules of civil procedure allow a court to set aside, vacate, or modify a judgment, other than a default judgment,_2/ after 90 days for misrepresentation or fraud. See Ark.R.Civ.P. 60(c)(4) (2003, current through December 1, 2003)._3/ The failure of Ms. W~ and Mr. L~ to notify the Washington County Chancery Court when petitioning for the annulment of their 1974 divorce, that Ms. W~ had been married and divorced from Mr. T~ during the intervening years, could be construed as a basis to set aside the annulment of divorce based upon misrepresentation or fraud. Id.

As previously noted, an annulment of a divorce under Arkansas law is a discretionary act by the court. See Dunn, 222 Ark. at 87-88 (the State is a silent third party to every divorce proceeding including annulments). Based upon the foregoing discussion, it is our belief that had the Chancery Court of Washington County been aware of Ms. W~' intervening marriage and divorce from Mr. T~, the Court would not have exercised its discretion and granted the annulment of divorce. Additionally, if the Washington Chancery Court had subsequently been made aware of such facts, the Court may have set aside the annulment of divorce action based upon misrepresentation or fraud by the petitioning parties.

Therefore, we conclude that the 1979 annulment of divorce entered into by Ms. W~ and Mr. L~ did not continue the 1965 marital relationship. A new marital relationship between Ms. W~ and Mr. L~ commenced with the judgment of annulment on April 6, 1979, and ended with their divorce on November 21, 1988. Thus, Ms. W~ and Mr. L~ were married for two periods spanning nine years and seven months. Consequently, Ms. W~ would not have been married long enough to meet the 10 year requirement for entitlement to widow's insurance benefits as a surviving divorced spouse under the Act.

Tina M. W~
Regional Chief Counsel
By: _____________________
Thomas C. S~

Assistant Regional Counsel

_1/ This general definition of voidable means valid until annulled. See Blacks Law Dictionary at 89 (7th rev. ed. 1999) (Blacks). A voidable judgment usually requires some affirmative judicial action that actually places the parties back in the same position that existed before the conduct at issue was undertaken. See Self v. Self, 319 Ark. 632, 638, 893 S.W.2d 775, 779 (Ark. 1995) (a widow who delayed setting aside a voidable divorce decree for 24 years was prohibited from claiming widow's benefits from the Veteran Administration as against the second spouse based upon the equitable doctrine of laches); Blacks at 1568. A void decree on the other hand is generally defined as being invalid from the beginning, or never to have legitimately existed under the law, and any judgment rendered under this doctrine is to document “for the sake of the good order of society” what occurred. See Ragan v. Cox, 210 Ark 152, 158-59, 194 S.W.2d 681, 685 (Ark. 1946) (void verses voidable marriage is found under the same general statutory provisions as annulment of divorce); Blacks at 1568.

_2/ Under Arkansas law, it is doubtful that the petition for annulment by Ms. W~ and Mr. L~ would be considered a default judgment since both parties jointly petitioned for the annulment action. Diebold v. Myers General Agency, Inc., 292 Ark. 456, 459, 731 S.W.2nd 183, 185 (Ark. 1987) (when a judgment is based upon evidence presented to the Court at trial, as opposed to being based on the failure of a party to appear or attend, the judgment is not a default judgment and Ark.R.Civ.P. 55 does not apply).

_3/ Arkansas does not differentiate between extrinsic or intrinsic fraud. See Ark.R.Civ.P. 60(c)(4). Extrinsic fraud relates to deception or intentional misrepresentation that is collateral to the issue being considered in the case (e.g., convincing a litigant not to hire counsel or answer a pleading by dishonestly saying a matter will not be pursued). See Black's at 671. Intrinsic fraud relates to deception that pertains to an issue involved in the original action (e.g., use of fabricated evidence, perjured testimony, or false commercial documents). Id. at 671-72.

The claimant for widow's benefits on the NH's record remarried (before age 60) after his death. She subsequently remarried, but obtained an Arkansas divorce decree effective the same day she applied for widow's benefits. Two weeks later, the Arkansas divorce was annulled. Under Arkansas law, the order setting aside the divorce decree made it a nullity from the beginning. Therefore, the effect of the order was that the claimant was never divorced from her subsequent husband and cannot be entitled to widow's benefits on her deceased husband's record.

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of Bobbie N. F~ (Bobbie) to widow's insurance benefits under the Social Security Act (the Act) as Robert L. L~'s surviving spouse. Bobbie was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. She subsequently remarried, but later obtained an Arkansas divorce effective the same day she applied for widow's insurance benefits. Two weeks later, the Arkansas divorce was itself annulled.

Specifically, you asked whether under Arkansas law, Bobbie's April 11, 2001 divorce was valid until dissolved by the judgment of annulment, or whether the divorce would be considered completely void. After reviewing the facts and the relevant law, as detailed more fully below, it is our opinion that the judgment of annulment rendered the 2001 divorce voidable. That is, once the court issued the order setting aside the April 11, 2001, divorce decree, the effect of the order was to place Bobbie and her second husband in the same position as if they had never been divorced. Consequently, Bobbie could not be considered unmarried at the time she applied for widow's insurance benefits on her first husband's record. Therefore, we believe that Bobbie did not qualify as Mr. L~ widow for entitlement to widow's insurance benefits under the Act. Your inquiry also asked if the dissolution of divorce was a terminating event for widow's benefits under the Act. Because we conclude that Bobbie did not qualify for widow's insurance benefits, it follows that she is not entitled to such benefits under section 202(e) of the Act. See 42 U.S.C. § 402(e).

As we understand the facts, on January 24, 2001, Bobbie, age sixty-three, filed for Title II retirement benefits. At the time of the application, Bobbie stated she had been married twice and was currently married to her second husband, Lindsey F~. Bobbie and Lindsey F~ married on June 12, 1997, when she was fifty-eight years old. However, on April 11, 2001, Bobbie filed a claim for widow's insurance benefits under the Act on the record of her first husband, Mr. L~. As previously noted, Bobbie was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. Bobbie stated that her marriage to Lindsey F~ ended in divorce on April 11, 2001, and that she was unmarried at the time she filed for widow's insurance benefits on her first husband's record. We assume from the Master Beneficiary Record submitted with the request for legal opinion that that some award of benefits was made based on these representations by the claimant.

On March 6, 2003, Mr. F~ filed for Title II retirement benefits. At the time he filed, Mr. F~ stated that he was married to Bobbie, but that they previously had been divorced for about thirty days. The records provided show that the April 11, 2001 divorce decree was set aside by the Court on April 24, 2001, indicating that; at most, Bobbie and Lindsey F~ had only been divorced for about two weeks.

As indicated above, we have been asked whether under Arkansas law Bobbie would be considered unmarried for purposes of widow's insurance benefits if her divorce was annulled.

As you know, one requirement for entitlement to widow's insurance benefits under the Act is that a claimant be unmarried at the time of filing, unless remarriage was after age sixty. See 42 U.S.C. § 402(e); 20 C.F.R. §§ 404.344-345 (2003). In order to determine the claimant's marital relationship to the insured individual, we look to the law of the state where the insured had a permanent home when he died. Id. Permanent home means the true and fixed home or legal domicile of the insured individual. See 20 C.F.R. § 404.303. As previously noted, Mr. L~ died in 1988 while in Montana, but Agency records provided with your request for legal opinion document that he was domiciled in Arkansas. Therefore, we will apply Arkansas law._11/

Arkansas invests State circuit courts with the power to dissolve a marriage contract based upon certain conditions. See Ark. Code Ann. § 9-12-301 (1987, current through the 2003 Reg. Sess.). Arkansas law also provides that a court may annul a divorce if the parties seeking annulment file a joint, verified petition in the court which rendered judgment. SeeArk. Code Ann. § 9-12-321 (“The proceedings for annulling a final judgment for a divorce from the bond of matrimony shall be a joint petition of the parties, verified by both parties in person, filed in the court rendering judgment, upon which the court may forthwith annul the divorce”). Additionally, the annulment of a divorce under Arkansas law is a discretionary act by the court. See Dunn v. Dunn, 222 Ark. 85, 87-88, 257 S.W.2d 283, 285 (Ark. 1953).

We could not find any cases in Arkansas interpreting the meaning of annulment under this particular statute. However, annulment is generally defined as the act of nullifying. See Black's Law Dictionary at 89 (7th rev. ed. 1999) (Blacks). Arkansas law does provide guidance on when a marriage can be annulled, and this guidance is found under the same general statutory provisions as annulment of divorce. Compare Ark. Code Ann § 9-12-201 (annulment of marriage), with § 9-12-321 (annulment of divorce). Consequently, this statutory guidance should at least be considered persuasive for our purposes. In Arkansas, a marriage can be annulled under certain circumstances. See Ark. Code Ann. § 9-12-201 (a marriage may be annulled when either individual to the marriage is incapable “from want of age or understanding” of giving consent, incapable of entering into a marriage state due to physical causes, or where consent is obtained by force or fraud). The Arkansas Supreme Court has interpreted this statute to mean that under these circumstances the marriage would be considered voidable; that is “practically valid” until set aside by a court decree, but once set aside, the marriage is considered a nullity from the beginning. See Vance v. Hinch, 222 Ark 494, 496-99, 261 S.W.2d 412, 414-15 (Ark. 1953) (Arkansas Supreme Court interpreting prior Ark. Stat. Ann. § 55-106, which was a precursor to Ark Code Ann. § 9-12-201); see also Ragan v. Cox, 210 Ark 152, 159, 194 S.W.2d 681, 685 (Ark. 1946) (Arkansas Supreme Court interpreting Pope's Dig. § 9021, which was a precursor to Ark. Stat. Ann. § 55-106).

This is consistent with the general definition of voidable which means valid until annulled. See Blacks at 1568. A voidable judgment usually requires some affirmative judicial action that actually places the parties back in the same position that existed before the conduct at issue was undertaken. See Self v. Self, 319 Ark. 632, 638, 893 S.W.2d 775, 779 (Ark. 1995) (a widow who delayed setting aside a voidable divorce decree for 24 years was prohibited from claiming widow's benefits from the Veteran Administration as against the second spouse based upon the equitable doctrine of laches); Blacks at 1568. A void decree on the other hand is generally defined as being invalid from the beginning, or never to have legitimately existed under the law, and any judgment rendered under this doctrine is to document “for the sake of the good order of society” what occurred. See Ragan, 210 Ark at 158-59 (void versus voidable marriage); Blacks at 1568.

Applying the highlighted principles to the facts of this case, when Bobbie and Lindsey F~ had their joint petition for annulment of the divorce granted by the Court on April 24, 2001, the order itself related back to the divorce decree dated April 11, 2001, and made it a nullity from the beginning. This view is bolstered by the language contained in the annulment decree itself which stated, “... the Decree of Divorce entered herein [on] April 11, 2001, be and is hereby annulled, set aside and forever held for naught.” This language is consistent with the view that while an annulment of a divorce in Arkansas is essentially a voidable act, once such judgment is rendered by the Court the divorce is considered a nullity from the beginning.

Finally, the Arkansas rules of civil procedure provide that a decree or order of a trial court may be set aside within ninety days of its having been filed with the clerk to correct any error or mistake or to prevent the miscarriage of justice. See Ark.R.Civ.P. Rule 60(a) (2003, current through December 1, 2003). The Arkansas Supreme Court has stated that a trial court has broad authority under Rule 60(a) to correct non-clerical mistakes or errors so as to prevent the miscarriage of justice if the court does so within ninety days of the filing of its decree or order. See Lord v. Mazzanati, 339 Ark. 25, 29-30, 2 S.W.3d 76, 79 (Ark. 1999). However, the primary purpose of Rule 60(a) is to empower a trial court to correct mistakes or errors so as “to make the record speak the truth.” Id. Insofar as both parties wanted their divorce annulled within two weeks of the decree being issued, presumably the Court acted to prevent a miscarriage of justice and to make the record “speak the truth,” i.e. that the parties were still married. Id.

You asked whether the April 11, 2001 divorce decree was valid until dissolved or whether the divorce was considered completely void. The April 24, 2001 judgment from the Chancery Court of Mississippi County, Arkansas, annulled, set aside and forever held for naught the decree of divorce entered April 11, 2001. Once the court issued the order setting aside the April 11, 2001, divorce decree, the effect of the order was to place Bobbie and Lindsey F~ in the same position as if they had never been divorced. If Bobbie was never divorced from Lindsey F~, she could not be considered unmarried at the time she applied for widow's insurance benefits on her first husband's record. Therefore, we believe that Bobbie did not qualify as Mr. L~ widow for insurance benefits under the Act.

In conclusion and in light of the foregoing, the judgment setting aside the April 11, 2001, divorce made the divorce voidable, and put the parties back in the position they were before the judgment was entered. As a result, Bobbie and Lindsey F~ were essentially never divorced. Therefore, consistent with our regulations, Bobbie did not qualify for widow's insurance benefits on her first husband's record because she was not unmarried at the time of application.

Tina M. W~
Regional Chief Counsel
By: _____________________
Thomas C. S~

Assistant Regional Counsel

_11Assuming arguendo that Montana State law applied in 1988, the year Mr. L~ died; Bobbie did not apply for widow's benefits on his account until some 13 years later while living in Arkansas. Additionally, the marriage, divorce, and annulment of divorce between Bobbie and Lindsey F~ all occurred in Arkansas. Given that the critical issue is whether Bobbie was still married to Mr. F~ when she filed for benefits on Mr. L~ account, the evidence points to Arkansas as the proper State law to apply in this case. See 42 U.S.C. § 402(e)(1)(A); 20 C.F.R. § 404.335(a).