The claimant remarried prior to age 60 and was not disabled. He cannot be entitled to widower's benefits since his divorce from his subsequent spouse is not recognized. A divorce decree granted by another State or country when neither party was domiciled in that State or country at the time of the divorce is not recognized under Massachusetts law.

This is in response to your request for an opinion regarding whether a divorce granted in Mexico is valid for purposes of determining eligibility for widower's benefits. The request was forwarded to our office by the Office of General Counsel in Atlanta, because the numberholder died while domiciled in Massachusetts. For the reasons discussed below, we believe that the divorce granted in Mexico in this case is not valid.

Background

The number holder, Micalea J. C~, and the claimant, James E. C~, were married on September 14, 1968, in Townsend, Massachusetts. The number holder died on July 1, 2000, in Massachusetts. Thereafter, the claimant married Jeanne M~ on October 2, 2004, in Lewisboro, New York. The claimant and his second wife were divorced pursuant to a final decree issued by the Civil Court of First Instance in Calpulalpan, Mexico on August 11, 2008. Both the claimant and his second wife were residing in South Carolina at the time of the divorce. It appears that neither the claimant nor his second wife appeared before the tribunal in Mexico, but rather that both parties were represented by a legal representative vested with a power of attorney. In any event, neither the claimant nor his second wife was domiciled in Mexico at the time of the divorce. The claimant, now age sixty-two (62), applied for widower's benefits on September 5, 2008.

Analysis

Under the Social Security Act, a widower is entitled to old-age or disability benefits if he meets several criteria. See Social Security Act, § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.335 (2008). Here, the claimant clearly meets four out of the five criteria: he had been married to the numberholder for more than nine (9) months prior to her death, and he was considered the numberholder's widow under the law of the state in which the numberholder had a permanent home at the time of her death, Massachusetts, see 20 C.F.R. §§ 404.335(a)(1), 404.345; he applied for widower's benefits, see 20 C.F.R. § 404.335(b); he is sixty-two (62) years-old, see 20 C.F.R. § 404.435(c); and he is not entitled to an old-age benefit that is equal to or larger than the numberholder's primary insurance amount, see 20 C.F.R. § 404.435(d).

The fifth criterion is the only one at issue. Under 20 C.F.R. section 404.435(e), the claimant must be unmarried to qualify for widower's benefits, unless 1) he remarried after he turned sixty (60) years-old; 2) he is at least sixty (60) years-old, remarried after he turned fifty (50) years-old but before he turned sixty (60) years-old, and was entitled to widower's benefits as a disabled widower at the time of remarriage; or, 3) he is at least fifty (50) years-old but not yet sixty (60) years-old, remarried after turning fifty (50) years-old, and was disabled at the time of remarriage. Here, the claimant remarried at age fifty-eight (58), see 20 C.F.R. § 404.435(e)(1), but was neither disabled nor entitled to disabled widower's benefits at the time of remarriage, see 20 C.F.R. § 404.435(e)(2), (3). Thus, he is entitled to widower's benefits only if he is unmarried, see 20 C.F.R. § 404.435(e), and the Commissioner will find the claimant unmarried only if his divorce from his second wife is valid.

To determine whether a marriage or divorce of a claimant for widower's benefits is valid, the Commissioner looks to the laws of the state where the numberholder had a permanent home at the time of her death. See 20 C.F.R. §§ 404.434, 404.435. Here, the numberholder lived in Massachusetts at the time of her death, and thus the validity of the claimant's divorce from his second wife in Mexico must be analyzed under Massachusetts law to determine if the claimant is unmarried.

Massachusetts will neither recognize nor enforce a divorce decree granted by another state or country when neither party to the marriage was domiciled in that state or country at the time of the divorce. In Bergeron v. Bergeron, 192 N.E. 86, 89 (Mass. 1934), the Supreme Judicial Court would not recognize a divorce decree granted in Mexico where neither the husband nor the wife lived in Mexico, or even physically appeared before the tribunal that granted the divorce decree. The court reasoned that "[a] decree of divorce rendered by one of the other States of the United States in which neither of the parties were domiciled is not entitled to full faith and credit and will not be recognized and enforced." Id. at 88-89. The court further stated that the same principles that govern the recognition of a divorce decree from another state likewise govern the recognition of a divorce decree from a foreign country. See id. at 89. Thus, the court ruled that it could not recognize a divorce decree granted by a foreign country in which neither of the parties had been domiciled. See id.

The United States Court of Appeals for the First Circuit has acknowledged in a social security benefits case that a divorce granted in a jurisdiction in which neither of the parties was domiciled is not valid under Massachusetts law. See Slessinger v. Sec'y of Health & Human Servs., 835 F.2d 937, 942-943 (1st Cir. 1987). The First Circuit noted that the divorce in Bergeron was ex parte, but that the Supreme Judicial Court's language in that case refusing to recognize the divorce was broad and would appear to apply to bilateral divorces. See id. at 943; see also Thompson v. Harris, 504 F. Supp. 653, 654 (D. Mass. 1980) (determining, in disability benefits case, that bilateral divorce granted in Mexico was not valid under Massachusetts law where neither party was domiciled in Mexico).

In the claimant's case, both the claimant and his second wife were domiciled in South Carolina at the time of their divorce. The claimant's second wife appeared in Mexico only through her legal representative; it is not clear from the evidence whether the claimant physically appeared in Mexico or whether he also appeared only through his legal representative. In any event, neither party was domiciled in Mexico at the time of the divorce, and therefore, the divorce would not be recognized or enforced under Massachusetts law._/1 The claimant still is married to his second wife under Massachusetts law, and accordingly, is not "unmarried" as required by 20 C.F.R. section 404.435(e), to be entitled to widower's benefits.

Conclusion

For the reasons discussed above, we believe that the Probate Court's finding that a common-law marriage existed is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.

Robert J. T~

Regional Chief Counsel

By: ______________________

Nicole A. L~

Assistant Regional Counsel

_/1 We note that even if the courts of Massachusetts looked to the law of South Carolina to determine the validity of the divorce, since the parties then resided in South Carolina, the result would not change. The Office of the General Counsel, Region IV, has concluded that South Carolina would not recognize the divorce as valid because neither party resided in Mexico.

The State court order was not contested and the facts do not support a finding that the claimant met New Hampshire's statutory requirements to be deemed a common-law spouse. There is no documetary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire. Under SSR 83-37c the court order is not binding on the Agency. Furthermore, there is no evidence that the claimant and NH went through a valid ceremonial marriage in Massachusetts, the State of the deceased's permanent home, when he died. There was no good faith attempt to enter into a valid and State-sanctioned marriage.

You have requested our opinion on whether the New Hampshire Probate Court document decreeing a common law marriage between the deceased, James E~, and the applicant, Renee K~ is legal, whether the 1987 ceremonial marriage between the deceased and applicant meets the regulatory definition to constitute a marriage for entitlement to widow's benefits, and whether the child of the applicant can be considered a step-child of the deceased for the purpose of receiving surviving child benefits. For the following reasons, we believe that the Probate Court's finding is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.

Factual Background

On April 8, 2008, Ms. K~ petitioned for surviving spouse's benefits for herself, and surviving child's benefits for her adopted son, Daniel K~. Ms. K~ claims that she married the deceased number holder as of May 1, 1987, by common law in New Hampshire, which has been affirmed by the Probate Court of New Hampshire.

Analysis

1. Legality of Probate Court Order

Your first question is whether the Probate Court Order, issued on August 9, 2000, finding that Ms. K~ is the common-law spouse of the decreased number holder, Mr. E~, is legal and binding on the Agency. Pursuant to Social Security Ruling (SSR) 83-37c, the Agency need not always accept a state court order in a proceeding in which the Agency was not a party. Rather, the Agency will accept the state court order only if the issue before the court was genuinely contested by parties with opposing interests, and the court's order is consistent with the law enunciated by the state's highest court.

Here, the issue of the existence of a common-law marriage was not contested in the Probate Court. Further, the facts do not support a finding that Ms. K~ met New Hampshire's statutory requirements to be deemed a common-law spouse.

First, while Ms. K~ claims that she and Mr. E~ shared a religious ceremony in 1982, she was not officially divorced from her husband, Mr. K~, until June 7, 1983. We would also note that we have no information to validate the claim that a religious ceremony took place in 1982, since Ms. K~ failed to provide a specific date, location, or any other corroborating evidence.

Ms. K~ also claimed in her Petition to the Court that she and Mr. E~ shared a family life, and raised two children, Yuri K~ and Daniel K~. Mr. E~, however, is not listed on Daniel K~'s adoption decree, dated June 28, 1989.

Ms. K~ further asserted in her Petition that she and Mr. E~ owned property together in Danbury, New Hampshire as joint tenants with right of survivorship. Ms. K~, however, has failed to present any documentary evidence demonstrating that she and/or Mr. E~ owned property in New Hampshire.

Lastly, Ms. K~ did not meet the requirements to be deemed legally married in New Hampshire. New Hampshire does not recognize common-law marriage but the state will, after the death of one of them, deem a couple to have been legally married if they were competent to contract marriage, cohabitated and acknowledged each other as husband and wife, and stayed in the relationship for three years. All of these events must have occurred while they were domiciled in New Hampshire. GN 00305.075 and N.H. Rev. Stat. 457:39. Pursuant to N.H. Rev. Stat. 21.6-a, domicile is a location that is designated by an individual as his principal place of physical presence for the indefinite future to the exclusion of others.

Here, there is no evidence that either Mr. E~ or Ms. K~ intended to make New Hampshire their principal place of residence. This is evidenced by the fact that while Ms. K~ reported to the Social Security Administration that she may have resided in New Hampshire for an extended period between 1988 and 1990, she lists her residence as Cambridge, MA on the June 1989 adoption decree for Daniel K~. Mr. E~'s 1999 Death Certificate also lists both his residence and Ms. K~'s as Cambridge, MA. Further, Mr. E~ did not hold Ms. K~ out as his wife, as on his death certificate he is listed as "never married."

Therefore, as there is no documentary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire, that either Mr. E~ or Ms. K~ lived or owned property in New Hampshire, or that either party was ever domiciled in New Hampshire, the Probate Court's Order finding that a common-law marriage existed is not binding on the Agency.

2. Significance of 1987 Ceremonial Marriage

Your second question is whether the ceremonial marriage in 1987 meets the criteria in the regulations to constitute a marriage for entitlement to widow's benefits. Pursuant to 20 C.F.R. § 404.345, to determine an applicant's relationship as the insured's widow, the Agency must look to the laws of the state where the insured's permanent home was when he died. The regulations define a permanent home as the true and fixed home of a person, the place to which he intends to return when absent. 20 C.F.R. § 404.303.

Under this regulatory section, Mr. E~'s permanent home when he died was in Massachusetts. There is no evidence that Mr. E~ and Ms. K~ were validly married in Massachusetts, as Rabbi Cherie K~-F~'s stated that while she performed a religious ceremony in 1987, she did not solemnize the marriage under Massachusetts law. Therefore, since Massachusetts does not recognize common-law marriage, Ms. K~ does not meet the definition for an insured widow.

The 1987 ceremonial marriage also does not meet the regulatory requirements for a deemed valid marriage. Pursuant to the regulations, an individual will be deemed to be a wife if in good faith she went through the marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. 20 C.F.R. § 404.346(a). In the present case, however, there is no evidence that Ms. K~ or Mr. E~ attempted to enter into a valid marriage. As was discussed above, the rabbi made no attempt to solemnize the relationship under state law, and thus there was no good faith attempt to enter into a valid and state-sanctioned marriage.

3. Status of Daniel K~

Your third question is whether Daniel K~ can be considered a step-child of the deceased number holder for the purpose of receiving surviving child's benefits. A child may be eligible for benefits if, after his birth, his natural or adoptive parent marries the insured. 20 C.F.R. § 404.357. The marriage between the natural parent and the insured must be valid under state law unless the union meets the requirements for a deemed marriage under section 346(a). Id.

Here, Ms. K~, Daniel's adoptive mother, was never married or deemed married to the insured. For this reason, Daniel K~ is not eligible for surviving child's benefits.

Conclusion

For the reasons discussed above, we believe that the Probate Court's finding that a common-law marriage existed is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.

The requirements under the New Hampshire statute states that persons cohabiting and acknowledging each other as husband and wife and generally reputed to be such for three years and until one of them dies shall thereafter be deemed to have been legally married. The statutue also states that "all events must occur in New Hampshire." Under New Hampshire law the fact that the NH's death occurred in Massachusetts rather than New Hampshire is irrelevant as long as the NH was legally domiciled in New Hampshire at the time of his death.

This memorandum is in response to your request for an opinion concerning whether a common law marriage existed between Arthur G~, the deceased number holder, and Valerie B~, who has applied for surviving spouse's benefits on his account. In our opinion the evidence you have submitted would be sufficient to support a finding that the claimant was the common law wife of the number holder.

The materials you submitted indicate that Valerie B~ and Arthur G~ were never formally married, but resided together in Salem, New Hampshire from 1998 until the number holder's death in May 2007. Both had a prior marriage that ended in divorce. They had a son during the time they lived together, and the son currently receives surviving child's benefits. Statements regarding their relationship were obtained from the daughter of Valerie B~ and two daughters of the number holder, as well as a statement from Valerie herself. The death certificate for Arthur indicates that he died from cardiac arrest on May 15, 2007, at a hospital in Boston, Massachusetts, and lists his residence as Salem, New Hampshire.

New Hampshire law provides that persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for a period of three years and until the death of one of them, shall thereafter be deemed to have been legally married. N.H. Rev. Stat. Ann. § 457:39. The entry for New Hampshire in POMS GN 00305.075 recites the requirements of the New Hampshire statute, and states that "all events must occur in New Hampshire."

You asked whether the fact that the number holder's death occurred in Massachusetts rather than New Hampshire would preclude a finding that Valerie was the common law wife of the number holder. Section 457:39 of the New Hampshire statutes can have no effect outside of New Hampshire. To satisfy the requirements of § 457:39, therefore, the cohabitation of the parties for at least three years and until the death of one of them, acknowledgement of each other as husband and wife, and general reputation as husband and wife must all occur while the parties are domiciled in New Hampshire. The physical location of the number holder when he died is irrelevant as long as he was legally domiciled in New Hampshire at the time of his death. Here it is clear that although the number holder died while in a Boston hospital, he and Valerie were both domiciled in New Hampshire at the time of his death. Therefore, the requirements of New Hampshire law are met and Valerie can be found to have been the common law wife of the number holder.

Under New Hampshire statute persons who are otherwise competent to contract marriage together who cohabit and acknowledge each other as husband and wife and are generally reputed to be such for three years and until one of them dies shall thereafter be deemed to have been legally married. All events must occur while the parties are domiciled in New Hampshire.

New Hampshire law also provides that a marriage shall be absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved.

This memorandum is in response to your request for an opinion concerning whether a common law marriage existed between Fred W~, the deceased number holder, and Genevieve W~, who has applied for widow's benefits on his account. For the reasons discussed below, Genevieve cannot be found to have been the common law wife of the number holder because at the time of the number holder's death her prior marriage had not been legally dissolved.

The materials you submitted indicate that Genevieve and Fred W~ were never formally married, but resided together in New Hampshire from 1982 until Mr. W~’ death in 1997 and considered themselves to be husband and wife. Genevieve was previously married to Bobby R~, and that marriage was not legally dissolved until 2004 or 2005. New Hampshire law provides that persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for a period of three years and until the death of one of them, shall thereafter be deemed to have been legally married. N.H. Rev. Stat. Ann. § 457:39. However, this provision applies only to persons who are competent to contract marriage together. New Hampshire law also provides that a marriage shall be absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. N.H. Rev. Stat. Ann. § 458:1. Here, since Genevieve's marriage to Bobby R~ was not legally dissolved prior to the number holder's death, the provisions of § 457:39 are inapplicable and Genevieve cannot be found to have been the common law wife of the number holder. See Fowler v. Fowler, 96 N.H. 494, 79 A.2d 24 (1951); Hilliard v. Baldwin, 76 N.H. 142, 80 A. 139 (1911).