TN 5 (07-06)
PR 05005.049 Utah
A. PR 06-186 Relationship of Widow Claiming Marriage to NH in State of Utah Number Holder Ellery W~, ~
DATE: July 5, 2006
Under Utah State law a decree of divorce may be vacated only within specified circumstances and timeframes. The claimant's relationship with the NH would not be recognized as a common-law marriage in the State of Utah since there is no evidence that either party filed an action to establish a common-law marriage during the relationship or within one year after their relationship terminated as required by the Utah statue. Furthermore, the Utah common-law statute cannot be retroactively applied.
You have requested an opinion on the relationship between the number holder (NH), Ellery W~, deceased, and claimant Barbara W~, who has filed for benefits as the widow of the NH.
Based upon the facts presented, it is our opinion that the 1956 marriage between claimant and the NH was dissolved by a valid divorce decree in 1960 and, although the parties continued to live together as husband and wife until 1979, they did not establish a common law marriage recognized by the State of Utah. Thus, claimant was legally married to the NH between 1956 and 1960, but not thereafter.
On December 2, 1956, the NH and claimant were married in Nevada. On February 23, 1960, the parties' marriage was dissolved when, after a hearing at which claimant was present, a Utah state court issued a divorce decree. Claimant states that she asked her attorney to vacate the divorce because the parties reconciled when they learned she was pregnant. There is no record that the divorce decree was vacated.
From 1960 to 1979, the parties lived together allegedly as husband and wife in Utah, where they bought a home, had two children, operated a business, and filed joint tax returns. There are no records that either of the parties remarried or sought a divorce during that time period. According to Claimant, the parties agreed that whoever wanted to get remarried would get a divorce.
Claimant stated that the NH married his second wife, Judy K~, on March 1, 1981. Claimant allegedly questioned the NH (presumably about the legality of his marriage to Ms. K~) at that time and was told "not to worry about it." The file does not contain documentation that either party, after their 1960 divorce decree, sought or obtained a divorce. According to the NH's application for disability benefits, the NH married his second wife on October 13, 1983. Both the NH and his second wife died in 1992.
In 2000, Claimant applied for widow's benefits on the record of the NH. In her application, she stated that she believed she was married to the NH until his death in 1992.
The relevant law and facts presented do not support Claimant's allegation that she was married to the NH until his death in 1992.
First, the file documents provided, if authentic, establish that Claimant and the NH solemnized their marriage in 1956; that she filed for divorce; and that she was present at a hearing resulting in a divorce decree, issued by a Utah state court on February 23, 1960, that would become "absolute in three (3) months." See Cahoon v. Pelton, 342 P.2d 94, 96-97 (Utah 1959) (Utah state laws provide for an interlocutory divorce decree that becomes final upon the expiration of a prescribed period, formerly six and now three months, without any further decree or order of the court, unless an appeal or other proceedings for review are pending or the court within that time otherwise orders) (citing "[§§] 30-3-6 and 30-3-7 U.C.A.1953, and the 1957 amendments thereto, which reduced the time from six months to three months for the divorce decree to become absolute").
Second, although Claimant states that she asked her attorney to vacate the decree, she did not receive notice or documentation from her attorney that the court had done so. A decree of divorce may be vacated under Utah state law only within specified circumstances and time frames. See, e.g., Johnson v. Johnson, 207 P.2d 1036, 1037-38 (Utah 1949) (holding that the trial court properly dismissed parties' petition to set aside and vacate interlocutory decree, based upon reconciliation, after the requisite time period had passed); see also Kessimakis v. Kessimakis, 546 P.2d 888, 889 (Utah 1976) (citing Utah Rules Of Civil Procedure, Rule 60(b)) (upon motion, the court may relieve a party from a final judgment because of fraud, misrepresentation, or other misconduct of an adverse party, provided that the motion is made within three months after the judgment was entered or taken)). Here, such circumstances did not exist, and there is no record that the parties' 1960 divorce decree was vacated.
Third, although the NH and Claimant lived together from 1960-1979 allegedly as husband and wife, they did not establish a common law marriage recognized by the State of Utah. Utah did not recognize nonsolemnized marriages, commonly referred to as common law marriages, until 1987, when the State legislature adopted section 30-1-4.5 of the Utah Code (Utah's common law statute). That statute provides as follows:
(1) [A marriage not solemnized according to state statutes] shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this Chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.
Utah Code Ann. § 30-1-4.5 (1987 Supp.). See also SSA POMS GN 00305.075 (stating Agency policy that common-law marriages fulfilling these requirements will be recognized in Utah as of April 27, 1987). The "termination" of the relationship described in section (2) of the common law statute has been interpreted to mean the date the relationship ended, not the date when the parties sought to legally terminate an already established common law marriage. See Kelley v. Kelley, 9 P.3d 171, 177 (Utah Ct. App. 2000) (holding that the petitioner was required to file an action to establish a common law marriage within one year after the altercation that resulted in the termination of their relationship). Once a common law marriage is established by meeting the requirements of the common law statute, a legal dissolution is required before the parties may terminate the marriage. See id. at 176-77.
It is our opinion that the documents in the file show that the relationship between Claimant and the NH between 1960 and 1979 met the requirements contained in Subsection (1) of Utah's common law statute. However, there is no evidence that either party filed an action to establish a common law marriage during the relationship, as required by subsection (2) of the statute. Likewise, Claimant cannot satisfy the second part of subsection (2) of the statute because there is no evidence that either party filed an action to establish a common law marriage within one year after their relationship terminated (i.e., when they separated and ceased living together in 1979). Thus, we believe that the parties' relationship after their 1960 divorce until their separation in 1979 or any date thereafter would not be recognized as a common law marriage in the State of Utah. See id. at 177-78 (holding that the petitioner was required to file an action to establish a common law marriage within one year after the termination of the relationship).
Furthermore, neither the Utah common law statute nor subsequent case law provides that the time restriction can be waived or that a common law marriage can be established for a time period ending prior to the enactment of the statute. Thus, we believe the Utah common law statute cannot be retroactively applied. See Goebel v. Salt Lake City Southern R. Co., 104 P.3d 1185, 1198 (Utah 2004) (holding that a statute is not to be applied retroactively unless the statute expressly declares that it operates retroactively).
Moreover, by Claimant's own admission, she knew the NH subsequently remarried and that dissolution of her marriage to NH was required before he could do so. And, the State of Utah does not allow a person to have more than one legal spouse. See State v. Holm, No. 20030847, 2006 WL 13119595 (Utah May 16, 2006) (upholding Utah's state constitution prohibiting polygamous or plural marriages).
For all of these reasons, we believe that the evidence in the file does not support Claimant's allegations that she believed she was married to the NH until 1992, and that the State of Utah would not recognize the existence of a common law marriage after the parties divorced in 1960.
Based upon the facts and documents presented, it is our opinion that Claimant was married to the NH from December 2, 1956, to February 23, 1960, but not thereafter.
Deana R. E~-L~
Regional Chief Counsel
Debra J. M~
Assistant Regional Counsel