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.
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
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employer argued that 1977 ruling could not be rescinded.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.
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.
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
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
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.