PR 01705.028 Missouri
A. PR 08-183 Entitlement to Child's Benefits Where Divorce From Prior Husband was Not Finalized Before Subsequent Marriage Julie A. F~ SSN: ~
DATE: September 5, 2008
A deemed marriage is sufficient to determine that the claimant is not eligible for entitlement as a disabled child because she cannot be considered "unmarried" under Federal Regulations.
You have asked for advice as to whether child's disability benefits may be denied to Mrs. Julie A. F~ based on a "deemed marriage" to Mr. Tony F~. We believe Mrs. F~ cannot be entitled to child's benefits from November 2000 forward because of a valid marriage and a deemed marriage. It appears that she could be entitled to disabled child's benefits, however, from July 2000 through October 2000 if her disability could be established as of that date.
The information you provided indicates that Mrs. Julie A. F~ previously received benefits on her adopted father's record, which were terminated in July 2000 after she ceased being a full time student. Mrs. F~ married Roger B~ on November 5, 2000, in Dunklin County, Missouri. Mrs. F~ received a notice of filing for divorce from Mr. B~ while he was incarcerated. However, he withdrew the filing for divorce and later filed again. The divorce was not finalized until December 12, 2007. Mrs. F~ assumed that she was divorced from Mr. B~, and married Tony F~ on April 9, 2005 in Missouri. Mr. and Mrs. F~' marriage was recorded in the Dunklin County, Missouri, recorder's office. Mr. and Mrs. F~ live together, with their child, and Mr. F~ supports them with his minimal employment. Mr. F~ applied for benefits, but was denied.
Mrs. F~ currently receives supplemental security income disability (SSI) benefits for mental retardation. Her onset date is June 28, 2002, which is prior to age 22. Her entitlement is based on a verbal intelligence quotient of 68. Mrs. F~' case was reopened to determine whether an earlier onset date was appropriate.
With the exception of the deeming provision of section 416(h)(1)(B) of the Social Security Act (the Act), the existence of a "marriage" for purposes of the Act is determined primarily by reference to State law. See § 416(h)(1)(A)(i). The Act provides that an applicant is the wife or husband of an insured individual "if the courts of the State in which such insured individual was domiciled at the time such individual files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, . . . would find that such applicant and such insured individual were validly married . . ." Id.
The Federal Regulations provide in relevant part:
You are entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if-
(1) You are the insured person's child, based upon [your relationship as an adopted or equitably adopted child];
(2) You are dependent on the insured;
(3) You apply;
(4) You are unmarried; and
(5) . . . you are 18 years old or older and have a disability that began before you became 22 years old . . .
See 20 C.F.R. § 404.350 (2008)
Based on the information provided, Mrs. F~ is the adopted daughter of the number holder and has a disability that began before she became 22 years old. Because she was previously entitled to child's benefits on the number holder's record, we assume the dependency requirements were met. The issue remains whether Mrs. F~ is unmarried.
In order to determine whether Mrs. F~ was married, we must look to state law. Her marriages to Mr. B~ and Mr. F~ both occurred in Missouri, therefore, Missouri law applies.
Under Missouri law
A judgment or dissolution of marriage is final when entered, subject to the right of appeal. An appeal from a dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the judgment which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.
See Mo. Ann. Stat. § 452.360.1 (2007). Thus, if neither party appeals the finding that the marriage was "irretrievably broken," the divorce is final when entered and both parties are free to remarry.
In James v. James, 45 S.W.3d 458, 460 (Mo. App. S.D. 2001) (citing Dunafon v. Dunafon, 800 S.W.2d 483, 484 (Mo. App. W.D. 1990)), the court held that a judgment granting a dissolution of marriage was final when entered. In Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571, 575 (Mo. App. W.D. 1995), the court stated: "In enacting § 452.360.1 the legislature intended that the part of the decree dissolving the marriage would become final by operation of law if it were not appealed, thereby allowing the parties to remarry even if other matters in the dissolution were appealed." See also Stratman v. Stratman, 948 S.W.2d 230, 234 (Mo. App. W.D. 1997). From the case law, it is clear that Missouri courts have interpreted the statute to allow an individual to remarry when neither party has contested the finding that the marriage is irretrievably broken because the judgment is then final.
In Mrs. F~' case, although apparently neither party contested the divorce, Mrs. F~' second marriage occurred prior to the filing of the decree dissolving her first marriage to Mr. B~. Thus, the judgment was not final. Missouri case law has consistently held, however, that a second marriage is presumed to be valid. See Chervitz v. Bi-State Development Agency, 11 S. W.3d 714 (Mo. App. E.D. 1999); Estate of Lucas v. Lucas, 909 S.W.2d 365, 369 (Mo. App. S.D. 1995); Sumners v. Sumners, 645 S.W.2d 205 (Mo. App. S.D. 1983); Carr v. Carr, 232 S.W.2d 488, 489 (Mo. 1950). A second or subsequent marriage will not be declared invalid except upon clear, cogent, and convincing evidence. See Chervitz, 11 S.W.3d at 717; Lucas, 909 S.W.2d at 369; Enlow v. Fire Protection Systems, Inc., 803 S.W.2d 148, 150
(Mo. App. E.D. 1991); Carr, 232 S.W.2d at 489 (presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence). The question in this case, is whether there is clear, cogent, convincing, and satisfactory evidence to overcome the Missouri presumption that Mrs. F~' second marriage is valid. Missouri courts have found that evidence of divorce of the first marriage after the second marriage began represents clear, cogent, convincing, and satisfactory evidence to overcome the presumption of validity. See Cavanaugh v. U.S., 94 F. Supp. 776 (D.C. Mo. 1951). Since the evidence of the divorce in the first marriage after the creation of the second marriage is clear and convincing that the first marriage was ongoing, the second marriage would not be presumed valid and thus would be void under Missouri law.
As Mrs. F~' marriage to Mr. F~ is void under Missouri law, we must determine whether her marriage to Mr. F~ is "deemed" valid under the Federal Regulations. See 20 C.F.R. § 404.346(a) (2008). A marriage is deemed valid if, in good faith, the individual went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. See id.; Program Operations Manual System (POMS) GN 00305.055; Burks v. Apfel, 233 F.3d 1220, 1222 (10th Cir. 2000); Knott v. Barnhart, 269 F. Supp. 2d 1228, 1232-33 (E.D. Cal. 2003).
A marriage ceremony must be performed, which requires an observance of certain formalities after obtaining a marriage license. See 20 C.F.R. § 404.346(a); POMS GN 00305.055B.1. Based on the facts provided, Mrs. F~' marriage to Mr. F~ was recorded in the Dunklin County, Missouri, recorder's office and verified with the recorder of deeds. Under Missouri law, a marriage is not valid unless it is solemnized. See Mo. Ann. Stat. § 451.040. As the information provided does not dispute that it was solemnized, the evidence suggests that a marriage ceremony was performed.
"Good faith" means that at the time of the ceremony Mrs. F~ did not know that a legal impediment existed or thought that it would prevent a valid marriage. See 20 C.F.R. § 404.346(a); POMS GN 00305.055B.3. We believe that you could find that Mrs. F~' marriage was in good faith because she believed Mr. B~'s initial filing for divorce meant that she was divorced.
A legal impediment exists when a prior marriage has not been dissolved. See 20 C.F.R. § 404.346(a); POMS GN 00305.055B.3. As discussed above, Mrs. F~' first marriage did not dissolve prior to her second marriage to Mr. F~. Because it appears that Mrs. F~ meets all of the requirements of 20 C.F.R. § 404.346(a), she had a deemed valid marriage to Mr. F~ beginning April 9, 2005.
The deemed marriage provision does not apply if a marriage was invalid for a reason under state law that is not listed in the Regulations. See POMS GN 00305.055B.3. In this case, Mrs. F~ was receiving SSI benefits due to mental retardation. Because marriages are considered civil contracts, the consent of the parties is considered essential. See Mo. Ann. Stat. § 451.010. Case law in Missouri provides some guidance in determining whether mental retardation prohibits one's ability to understand and thus, give proper consent to enter into the marriage contract. An individual's capacity to enter into a marriage contract is governed by the condition of their mind at the time of the marriage. See Westermayer v. Westermayer, 267 S.W. 24 (Mo. Ct. App 1924).
In Westermayer, the court concluded that "mere weakness of intellect is not deemed sufficient to invalidate [a] marriage, if the party [was] capable of comprehending and understanding the subject of the contract, its nature, and probable consequence." Id. at 26. While it is true that Mr. F~ is the representative payee for Mrs. F~, this does not demonstrate that she lacked the ability to comprehend the consequences of her actions. More recent case law states that it is possible for an individual to understand that she is being married and to understand the effects and consequences of the marriage relationship while not being able to wisely manage her property or business affairs. See Sheffield v. Andrews, 440 S.W.2d 175 (Mo. App. 1969). There is no indication that Mrs. F~ lacked the capacity to enter into the marriage contract or understand the nature and probable consequences of entering into a marriage contract.
Mrs. F~ Full Scale IQ was a 74 and there is no indication that her first marriage was annulled because she lacked the mental capacity to enter it in November 2000. As Mrs. F~' second marriage is void due to her ongoing first marriage, and not due to mental deficiencies, the deemed marriage provision would remain applicable.
As Mrs. F~' marriage to Mr. F~ is deemed valid under the Regulations, Mrs. F~ is not "unmarried" as required by 20 C.F.R. § 404.350. See also POMS RS 00203.001; RS 00203.020. The Regulations state that entitlement to child's benefits ends with the month before the month you marry. See 20 C.F.R. § 404.352(a)(4) (2008).
In this case, we believe that Mrs. F~ was not entitled to child's benefits between November 5, 2000, through April 8, 2005, due to her marriage to Mr. B~. In addition, Mrs. F~ is not entitled to child's benefits after that date because her marriage to Mr. F~ is deemed valid. Thus, she is not "unmarried" as required by 20 C.F.R. § 404.350. It appears she could be entitled to disabled adult child's benefits, however, from July 2000 until October 2000 if her disability can be established as of that date.
Kristi A. S~
Chief Counsel, Region VII
Jeremiah D. H~
Assistant Regional Counsel