BASIC (06-09)

PR 03440.035 New York

A. PR 09-101 Eligibility for Wife's Insurance Benefits Number Holder - Jean E~, a/k/a Auguste J. C. E. Claimant - Janet F~, a/k/a Marie C. F~

DATE: April 6, 2009

1. SYLLABUS

This case found that a claimant is eligible for wife's insurance benefits as a divorced wife on the account of the NH based on the claimant not being married, having been married to the insured individual for at least ten years prior to the divorce and the claimant not currently being married. The findings are based on the Act §§ 202(b)(1), 216(d)(1); 20 C.F.R. § 404.331, 202(b)(1)(H); 20 C.F.R., and § 404.332(b)(3) (2008).

2. OPINION

QUESTION

You asked whether the claimant, who divorced the number holder in the Republic of Haiti, is eligible for wife's insurance benefits as the wife or divorced wife of the number holder.

OPINION

We believe a Social Security Administration (SSA) adjudicator could find the claimant eligible for wife's insurance benefits as a divorced wife on the account of the number holder.

BACKGROUND

Janet F~ (Claimant) and Jean E~, the number holder (NH), were married on December 11, 1965, in the Republic of Haiti. Claimant and NH produced two children during their marriage. On October 20, 1977, Claimant became a naturalized citizen of the United States. On September 21, 1979, Claimant obtained a divorce decree in Haiti. Claimant personally appeared before a court in Haiti to obtain the divorce decree. Claimant alleges NH filed an answer after receiving notification of the divorce proceedings by mail. Claimant and NH were both residents of New York at the time of the alleged divorce.

Claimant married and divorced twice following her alleged divorce from NH. Neither of these latter two marriages lasted longer than ten years. Claimant's most recent divorce occurred on June 23, 1993. NH remarried on August 1, 1995, and remains a resident of New York. Claimant and NH are both over the age of sixty-two. NH began receiving retirement insurance benefits in August 2002. Claimant began receiving disability insurance benefits in September 1997, and receives less than half the monthly benefit amount received by NH.

DISCUSSION

To be eligible for wife's insurance benefits as either a wife or a divorced wife of an insured individual entitled to retirement or disability insurance benefits, a claimant must first show she (1) filed an application for wife's insurance benefits; (2) has attained the age of sixty-two, and (3) is not entitled to retirement or disability benefits or is entitled based on a primary insurance amount which is less than one-half the primary insurance amount of the insured individual. See Social Security Act (Act) § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. §§ 404.330, 404.331 (2008). Claimant filed an application for benefits, is over the age of sixty-two, and receives disability benefits in an amount which is less than half the monthly retirement benefits received by NH. However, the Act imposes additional eligibility requirements before either a wife or a divorced wife can obtain wife's insurance benefits.

1. Eligibility for Wife's Insurance Benefits as the Spouse of NH

A claimant for wife's insurance benefits as the wife of an insured individual must also show she is married to the insured individual as well as one of the following: (1) the marriage lasted at least one year immediately preceding the day on which the application was filed, (2) both the claimant and the insured individual are the natural parents of a child, or (3) the claimant was entitled to Social Security benefits in the month before she married the insured. See Act § 202(b)(1); Act § 216(b)(1), 42 U.S.C. § 416(b)(1); 20 C.F.R. § 404.330. Although Claimant and NH produced two children during their marriage, Claimant submitted documentation indicating she obtained a divorce from NH in the Republic of Haiti on September 21, 1979. If the divorce was valid, Claimant cannot receive wife's insurance benefits as NH's wife.

A claimant is the wife of an insured individual if the courts of the state in which such insured individual is domiciled would find the claimant and the insured individual were validly married when the application was filed. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345 (2008). NH was domiciled in New York when Claimant filed her application for wife's insurance benefits. The Office of the Regional Chief Counsel in Region II (ORCC-II) analyzed the validity of the divorce decree submitted by Claimant and concluded New York would most likely recognize the decree as valid. The ORCC-II noted Claimant personally appeared before a court in Haiti to obtain the divorce. Claimant also alleges NH filed an answer after receiving notification of the divorce proceedings by mail._/1

NH's consent to the divorce is further evidenced by the decision of both NH and Claimant to remarry. The ORCC-II explained New York recognizes a presumption in favor of finding an individual's most recent marriage valid._/2 Therefore, we believe a New York court would accept the Haitian divorce decree and find NH and Claimant were not married when the application for wife's insurance benefits was filed.

Claimant could be deemed the wife of NH if a New York court would find Claimant eligible to inherit from NH through intestate succession even after finding she was not legally married to NH when the application was filed. See § Act 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Claimant could also be deemed the wife of NH if she entered into a purported marriage with NH which would have been valid but for a legal impediment not known to Claimant at the time of the ceremony. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a) (2008). However, it is not necessary to address these issues since, as explained below, Claimant is entitled to wife's insurance benefits as the divorced wife of NH.

2. Eligibility for Wife's Insurance Benefits as the Divorced Spouse of NH

A claimant for wife's insurance benefits as a divorced wife of an insured individual entitled to retirement or disability benefits must also show she is not married and was married to the insured individual for at least ten years prior to their divorce. See Act §§ 202(b)(1), 216(d)(1); 20 C.F.R. § 404.331. Claimant is not married and her marriage to NH lasted more than ten years. A claimant can lose eligibility for wife's insurance benefits as a divorced wife if she marries a person other than the insured individual. See Act § 202(b)(1)(H); 20 C.F.R. § 404.332(b)(3) (2008). However, a divorced wife can be re-entitled to benefits if she was divorced from the number holder and married another person but the later marriage terminated, provided she meets the other requirements for entitlement. See POMS RS 00202.046. Claimant's most recent divorce occurred on June 23, 1993. Although Claimant married and divorced twice since her divorce from NH, she is eligible for wife's insurance benefits on NH's account as a divorced wife because she is currently single.

CONCLUSION

An SSA adjudicator could find Claimant eligible for wife's insurance benefits as a divorced wife on the account of NH.

Mary A. S~
Regional Chief Counsel
By: _________
Christopher G. H~
Assistant Regional Counsel


_/1 “Under New York law, a divorce granted by foreign country will be afforded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, was established by a statutory 'brief contact' through the appearance of one of the parties.” See Program Operations Manual System (POMS) PR 06210.035(A). “However, mail order divorces, where a husband and wife attempt to confer jurisdiction upon a court of a foreign nation by executing powers of attorney to counsel residing there, and forwarding such instruments by mail without ever visiting that nation, are void.” Id.

_/2 “This presumption operates to effectuate 'a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise.” See POMS PR 05110.035, quoting Dolan v. Celebrezze, 381 F.2d 231, 237 (2nd Cir. 1967).


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PR 03440.035 - New York - 06/29/2009
Batch run: 06/29/2009
Rev:06/29/2009