TN 1 (11-04)
PR 05110.001 Alabama
A. PR 06-116 Validity of Marriage in Alabama Claimant - Mary B~ Number Holder - Frances B~
DATE: April 24, 2006
A presumption arises in favor of the validity of the last marriage. The claimant does not have the burden of showing that she was "legally competent" to contract marriage with NH. The burden of rebutting the presumption is on the party attacking the validity of the most recent marriage to "not only establish the fact of the previous marriage, but that such previous marriage has not been dissolved by divorce or death." Given the fact that Alabama does not maintain divorce records prior to 1950, it would be impossible to either prove that either NH's or claimant's prior marriages had not ended in divorce or death.
In a case governed by Alabama law, has a claimant presented sufficient evidence to show that she is the surviving widow of number holder?
As discussed in greater detail below, we believe that Claimant has presented sufficient evidence to show that she is the number holder's surviving spouse either through a valid ceremonial or common-law marriage.
The facts as presented are that Mary J. B~ (Claimant) filed an application for survivor benefits as the widow of Francis B~, the number holder (NH), who died in 1959 in the State of Alabama. Claimant is an eighty-six year old Supplemental Security Income (SSI) recipient with a representative payee; and the Agency employee that interviewed her observed that she had a poor memory and seemed confused.
Claimant alleges that she and NH had a ceremonial marriage in March 1945 in Mobile, Alabama. Claimant does not remember the name of the official who performed the ceremony, and the witnesses are dead. Claimant did not have a copy of the marriage license, and the Agency could not locate a copy after a reasonable search through state records. There were neither pictures taken at the ceremony nor a wedding announcement published in the newspaper. As proof of the marriage, Claimant provided several documents that listed her as NH's spouse: NH's death certificate, a mortgage deed, and two union documents.
Prior to their alleged marriage, Claimant had been married once; and NH had been married twice. The Agency obtained copies of the marriage certificates for Claimant's prior marriage and one of NH's prior marriages. The Agency was unable to locate divorce decrees showing that either Claimant's or NH's prior marriages ended; however, the Alabama Office of Vital Records does not maintain divorce records prior to 1950. Claimant believed that she divorced her first husband, Stevenson T~, in 1943. When Mr. T~ applied for retirement insurance benefits, he indicated that he divorced Claimant on October 1, 1948. The Agency also obtained birth certificates for the children of Claimant and/or NH: (1) Dorothy T~, born 8/6/44 to Stephen T~ and Mary J. B~; (2) Matthew B~, born 3/28/45 to Francis B~ and Earnestine G~; (3) Edward B~, born 3/24/46 to Francis B~ and Mary B~; (4) Johnny Lee B~, born 9/12/47 to Francis B~ and Mary Jane B~.
Under the Social Security Act (Act), the widow of a fully-insured individual is entitled to benefits upon attaining age sixty. See section 202(e)(1)(B)(i) of the Act, 42 U.S.C.
§ 402(e)(1)(B)(i). Because Claimant is the mother of two of NH's children, she would be his "widow" if she establishes that she is his "surviving wife." Section 216(c)(1) of the Act, 42 U.S.C. § 416(c)(1).
There are two ways that Claimant may qualify as NH's widow, and thus be eligible for survivor benefits under the Act. An applicant may qualify as the legal widow of an insured individual if "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 at the time . . . he died." Section 216(h)(1)(A)(i) of the Act. An applicant who is not the "legal widow" of the insured individual still may be eligible for benefits as a "deemed widow" if such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for the legal impediment not known to the applicant at the time of such ceremony would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of [his] death . . . .
Section 216(h)(1)(B)(i) of the Act.
Claimant alleges that she and NH were married in a ceremonial marriage in March 1945 and remained married until his death in 1959. "The presumption of ceremonial marriage is strong, especially where supporting evidence shows that the parties lived together as husband and wife for many years, and it can be rebutted only by convincing evidence to the contrary." Program Operations Manual System (POMS) GN 00305.030(A). Although Claimant was unable to produce preferred proof such as a copy of a public or religious record of marriage or an original certificate of marriage, as outlined in POMS GN 00305.020, "the absence of a record in the place where the marriage is alleged to have occurred will not in itself defeat the presumption." POMS GN 00305.030(A).
We first examined whether Claimant presented sufficient supporting evidence to support a presumption of ceremonial marriage to NH. It does not appear that Claimant offered sufficient secondary proof of marriage to meet the requirements of POMS GN 00305.025. Although Claimant provided a description of the marriage ceremony as outlined in POMS GN 00305.025(B)(1), she is also required to provide at least one piece of secondary evidence of the ceremony. See POMS GN 00305.025(B)(1). Secondary evidence may include: (1) a signed statement from the clergyman or official who performed the ceremony; (2) statements of witnesses to the marriage ceremony; (3) a newspaper account of the wedding; (4) statements from at least two persons who have knowledge that a ceremony took place; (5) other probative evidence that a ceremony took place, such as photos. See POMS GN 00305.025(B)(2). In this case, there is no acceptable secondary evidence of the marriage ceremony.
Even though the Agency was unable to obtain preferred or secondary proof of marriage, the Agency may apply the presumption of ceremonial marriage where supporting evidence shows that the parties lived together as husband and wife for many years. See POMS GN 00305.030(A). The following evidence may support a presumption of a marriage:
* Excerpts from naturalization certificates, deeds, immigration records, insurance policies, or passports which indicate the parties as husband and wife;
* Records which show a marital relationship such as business, employment, bank, fraternal, school, labor, church, or other records;
* Purchase agreements, contracts, or leases executed by both parties, letters to both parties, or letters from one party to the other indicating a marital relationship.
POMS GN 00305.030(B)(2)(a). Claimant presented several pieces of supporting documentation. There are birth certificates showing that Claimant and NH had two children in 1946 and 1947, respectively. Claimant and NH are listed as husband and wife on mortgage documents dated November 9, 1955. Additionally, Claimant is listed as NH's wife on two forms from the United Mine Workers of America. Finally, NH's death certificate lists Claimant as his surviving spouse. This evidence appears sufficient to support a presumption of ceremonial marriage under POMS GN 00305.030.
We also considered whether Claimant and NH may have created a common-law marriage. Alabama recognizes common-law marriage and treats it as "a co-equal, alternate method of validating the connubial union of two people." Piel v. Brown, 361 So.2d 90, 93 (Ala. 1978). The elements of a valid common-law marriage in Alabama are: (1) the capacity to marry; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. See Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990). The evidence suggests that Claimant and NH agreed to enter a marriage relationship. The fact that the couple had two children together and purchased a home as man and wife provides evidence of cohabitation.
In describing the manner in which a couple must live to gain public recognition, the Adams court noted that "it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them whilst living together, such as deeds, wills, and other formal instruments." Id. at 1088 (quoting Maryland v. Baldwin, 112 U.S. 490, 495 (1884)). In Hall v. Duster, 727 So.2d 834, 837 (Ala. Civ. App. 1999), the court found a funeral program listing the putative husband as the son-in-law of his putative wife's father to be "clearly relevant" to the issue of whether the parties were recognized as husband and wife. As previously noted, Claimant presented various documents listing her as NH's wife, including mortgage documents, birth certificates, union documents, and his death certificate.
There is certain evidence to suggest that Claimant may not have had the capacity to marry NH in March 1945. In this regard, Claimant's first husband, Mr. T~, indicated in his application for retirement benefits that he divorced her on October 1, 1948. Assuming that he provided the correct date of the divorce, Claimant would not have been legally competent to marry NH in 1945. Alabama, however, recognizes a presumption of actual marriage after the impediment to marriage is removed:
where parties who are competent to marry enter an illicit relation, with the manifest desire and intention to live in a marital union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle and warrants a finding to that effect.
Matthews v. Matthews, 67 So.2d 22, 24 (Ala. 1953). Because the evidence suggests that Claimant and NH continued to live together as husband and wife after October 1, 1948, their common-law marriage would have been legally valid after that date.
The existence of NH's prior marriages appears insufficient to rebut the presumption of the validity of his most recent marriage to Claimant. The presumption "that a marriage is legal and valid in all respects is one of the strongest known to the law" and "attaches with full force to the latest marriage, the reason being that the presumption of innocence, morality and legitimacy will counterbalance and preponderate against the presumption of the former relations." Faggard v. Filowich, 27 So.2d 10, 12 (Ala. 1946) (quoting Sloss-Sheffield Steel & Iron Co. v. Alexander, 3 So.2d 46, 48 (Ala. 1941)).
Claimant maintains both she and NH were divorced from their prior spouses at the time of their marriage. Claimant does not have the burden of showing that she was "legally competent" to contract marriage with NH. See Matthews, 67 So.2d at 23. Instead, the burden is on the party attacking the validity of the most recent marriage to "not only establish the fact of the previous marriage, but that such previous marriage has not been dissolved by divorce or death." Faggard, 27 So.2d at 12. Thus, Claimant is not required to affirmatively establish that either her or NH's prior marriages dissolved by divorce or death. To attack the latest marriage, the Agency would be required prove that the prior marriages had not ended. In describing this burden, the Alabama Supreme Court stated that party attacking the marriage must produce "legal evidence that the divorce courts of all the counties in the state which would have jurisdiction of such a suit did not have a record of a decree of divorce." Vinson v. Vinson, 69 S0.2d 431, 434 (Ala. 1953). Given that the Alabama Office of Vital Records indicated that it does not maintain divorce records prior to 1950, it would appear that the Agency cannot carry its burden.
As submitted, the facts suggest that Claimant is entitled to survivor's benefits as NH's surviving spouse. Claimant presented evidence such as mortgage documents, birth certificates, and union documents sufficient to establish the presumption of ceremonial marriage where supporting evidence shows that the parties lived together as husband and wife for many years under POMS GN 00305.030 and Alabama caselaw. Alternatively, this evidence appears sufficient to suggest the existence of a valid common-law marriage under state law. Moreover, given that Alabama does not maintain divorce records prior to 1950, it would be impossible to either prove that either NH's or Claimant's prior marriages had not ended in divorce or death. As a result, there is support under Alabama caselaw to apply the presumption of the validity of the last marriage.
Mary Ann ~
Regional Chief Counsel
Joseph P. ~
Assistant Regional Counsel
B. PR 04-323 Whether a prior bigamous marriage voids a subsequent marriage for the purposes of determining Joan R~ entitlement to benefits as the spouse of Emil R~, SSN ~
DATE: November 8, 1984
To receive spouse's benefits on the NH's record, the claimant must provide clear and convincing evidence that her prior husband was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If she can provide evidence sufficient to establish that her marriage to her prior husband was void, the validity of the NH's divorce from his prior spouse must be considered. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to her marriage with her prior husband will continue, and she cannot receive benefits as the NH's spouse.
You have asked for advice on whether a valid marriage exists between the number holder, Emil R~, and the claimant, Joan R~. As we understand the facts of the case, Joan R~ contends that her first undissolved marriage to Raymond S~ was void for bigamy based on his prior marriage to Eileen Doris P~ S~, and that therefore her subsequent marriage to Emil R~ is still valid. Based on the current factual record, we cannot draw any conclusion but have outlined possible outcomes depending on what is uncovered in further development of the facts.
Joan R~, formerly Joan Elizabeth V~, married Raymond S~ in New York on December 3, 1954 in a ceremony solemnized by clergyman, Reverend John U~ (Ex. 1). In the December 2, 1954 Affidavit for License to Marry, Raymond indicated that he had never been married and never been divorced (Ex. 2). In addition, Joan and Raymond listed New York as the place of their residence. According to Emil R~'s statement to the Social Security Administration (“SSA”), Joan and Raymond had three children together (Ex. 3). There is no further information in the record regarding the duration or character of the Joan-Raymond marriage.
Joan attested to the City Magistrate of New York City on September 23, 1958 that Raymond committed bigamy by marrying her when he was still married to Eileen (Ex. 4). The record does not indicate when Joan first became aware of Raymond's prior marriage to Eileen. Raymond subsequently pled guilty on January 21, 1959 to perjury in the second degree (under New York Domestic Relations Law § 16 and punishable under New York Penal Law § 210.10) (Ex. 5).
In Emil's letter to the SSA, he stated that Joan told him she had never divorced “Alan S~” (Ex. 6). According to Emil, Joan and he met with an attorney, Anthony D~, to procure a divorce for Joan in preparation for their own wedding (Ex. 3). Attorney D~ advised them that a divorce would be unnecessary as the marriage with Raymond was void because of Raymond's bigamy. Emil testified that on the strength of D~'s advice, Joan did not divorce Raymond and that both he and Joan entered into their marriage believing that the marriage was legal. This is consistent with Joan's statement to the SSA that when she married Emil, she was free to marry and that Emil knew it (Ex. 7).
On July 16, 1962, in her sworn Application for Marriage License, Joan listed her name as “Joan V~” and noted that she had never been married (Ex. 8). Emil listed the fact of his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob M~, Jr. in the Circuit Court of Winston County, Alabama (Id.).
As to Emil's prior marriage, your records reference a marriage between Emil and Theresa C~n September 18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham, Alabama (Ex. 9). The record does not contain copies of the marriage license or certificate. On his application for a license to marry Ellen, Emil identified only Theresa C~ as a prior wife and that she was alive at the time of the application (Ex. 10). He further listed incompatibility as the grounds for divorce and noted the date of divorce as June 2, 1958. Your records, however, contain a copy of the Report of Divorce between Emil and Theresa filed with the Alabama Department of Health (Ex. 11). That report lists the date of their marriage as September 27, 1950 and the date of the final decree of divorce as June 17, 1958. The divorce decree indicated that the divorce was granted to Theresa on the grounds of abandonment and that at the time of the divorce they had one child under eighteen years. The divorce decree contained no information regarding Emil's place of residence. Similarly, for Theresa, the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. No judge's signature appears on the divorce decree. The divorce decree is signed by Dorothy S. H~, State Registrar, but the date of her signature appears to be June 19, 1995. Your records show no social security number for Theresa C~ (Ex. 9).
On July 21, 1962, Emil married Joan in Union City, New Jersey in a ceremony solemnized by Judge Frank G. H~ (Ex. 8). Although they married in New Jersey, both Emil and Joan listed New York as their place of residence on the Application for Marriage License. The Joan-Emil marriage produced no children, and Joan and Emil subsequently separated (Ex. 3). Emil stated that they separated in 1964 (Ex. 3), while Joan asserted that they separated in the late 1960s (Ex. 7). Emil testified that prior to his current marriage to Ellen G~, he consulted attorney D~ about obtaining a divorce from Joan (Ex. 3). According to Emil, D~ told him that securing a divorce would be unnecessary as the marriage was void for Joan's bigamy in failing to divorce Raymond prior to marrying Emil. Emil testified that based on D~'s counsel, he married Ellen on August 7, 1965 without first divorcing Joan. Your records confirm that Emil married Ellen on August 7, 1965 in Brooklyn, New York (Ex. 9-10).
While Emil asserted that he had no further contact with Joan after their separation in 1964 (Ex. 3), Joan stated in her claim to the SSA that Emil informed her of his plans to marry Ellen (Ex. 7). Joan stated that when she told Emil to get a divorce first, he made no comment and drove off. She reported never receiving any divorce papers from Emil.
Emil filed for retirement benefits in November 1991 (Ex. 3). He claims that because he knew his marriage to Joan was bigamous and “not legal,” he did not list Joan on his benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that Emil listed Joan as a prior spouse, indicating that they married on June 19, 1962 and that their marriage ended on January 15, 1963 (Ex. 9). Your office has also confirmed that Ellen R~ is in current payment status as the spouse on Emil's record. Joan has filed an application for spouse's benefits, claiming she is Emil's legal spouse. We understand from your office that Emil was residing in Florida at the time Joan filed her application.
In examining wife's benefit claims, the SSA will look to the laws of the State where the insured had a permanent home at the time his wife applies for wife's benefits. 20 C.F.R. § 404.344. If the spouses were validly married under State law at the time of the wife's application for benefits, the relationship requirement will be met. Id. In this case, Emil was domiciled in Florida at the time Joan filed her application for wife's benefits. As such, we must determine whether Florida would recognize the existence of a valid marriage between Joan and Emil.
Under Florida law, the validity of the marriage between Joan and Emil would be evaluated with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944)(holding that in determining the validity of a marriage, reference will be made to the “law of the place where it is contracted.... And, if valid according to the law of the State where contracted, a marriage is to be regarded as valid in every other jurisdiction”)(citations omitted). Thus, under Florida law, the marriage between Joan and Emil will be considered valid if it is valid under the law of New Jersey, where the marriage was contracted.
1. The Effect of the Joan-Raymond Marriage on the Joan-Emil Marriage:
Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because Joan and Emil properly obtained and delivered their marriage license prior to having the marriage solemnized by Judge Hahn, New Jersey would normally recognize that Joan and Emil entered into a valid ceremonial marriage on July 21, 1962, especially since neither Joan nor Emil instituted divorce proceedings against each other.
To establish eligibility for spousal benefits, presentation of a copy of the public record of marriage normally constitutes preferred evidence of a valid ceremonial marriage, such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709, 404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the validity of the latest of two successive marriages involving a common participant. Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN00305.035. Thus, it facially appears that Joan's marriage to Emil is presumptively valid.
The record, however, contains additional information indicating that Joan was already validly married to Raymond at the time she married Emil. New Jersey accepts the common law proposition that “[c]ivil disabilities, such as a prior marriage, … make the contract of marriage void Ab initio and not merely voidable.” Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage is a legal nullity, a judgment of nullity is not required to render the marriage void. Minder, 83 N.J.Super. at 163, 99 A.2d at 71. Joan's marriage to Emil may be void, therefore, because of Joan's possible bigamy.
Determining who has the burden of proving the validity of the Joan-Raymond marriage is the critical issue in this case. Although New Jersey case law furnishes a burden-shifting framework for determining the presumptive validity of subsequent marriages, the Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proofs and evidence necessary to establish the right to benefits. 42 U.S.C. § 205(a). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708. In deciding whether evidence is convincing, the SSA will look to whether “information contained in the evidence agrees with other available evidence, including our records.” 20 C.F.R. § 404.708(f). Here, the record contains evidence of a valid ceremonial marriage between Joan and Raymond as well as Joan's testimony that she married Raymond and never divorced him. Accordingly, this evidence conflicts with the evidence of the validity of Joan and Emil's marriage, and Joan bears the burden of proving that her marriage to Raymond, which Joan alleges was Raymond's second marriage, was void because of his bigamy.
a. The Presumption of Validity Attaching to the Joan-Raymond Marriage:
The record indicates that Joan married Raymond in New York on December 3, 1954. Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (McKinney 2003), and the marriage is solemnized by “a clergyman or minister of any religion….” N.Y. Dom. Rel. Law § 11 (McKinney 2003). Because Joan and Raymond properly obtained and delivered their marriage license prior to having their marriage solemnized by a clergyman, New York would normally recognize that Joan and Raymond entered into a valid, ceremonial marriage on December 3, 1954.
As with New Jersey, once a ceremonial marriage has been performed, New York recognizes a strong presumption in favor of holding the latest of subsequent ceremonial marriages valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Meehan's Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued”). Furthermore, the presumption of validity of the second marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” Grabois, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York 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." Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).
In this case, it seems unlikely that a court would find that the balance of equities tips in favor of invalidating Joan's marriage to Raymond. Joan and Raymond entered into a ceremonial marriage that allegedly produced three children. The presumption of validity will be particularly strong here as the legitimacy of Joan and Raymond's children may otherwise be cast in doubt. Furthermore, no strong public policy would be served by permitting Joan to void her marriage to Raymond in order to obtain wife's benefits from Emil, a man to whom she was putatively married for only three years and with whom she had no children, and who has been married to his current wife, Ellen, for thirty-nine years. On these facts, New York will likely recognize the presumption of validity that attaches to Joan and Raymond's ceremonial marriage.
Joan, however, does not dispute that she participated in a marriage ceremony with Raymond. She contends that because Raymond was previously married to another living woman at the time of their marriage, her marriage to Raymond was necessarily void under New York law. New York Penal Law establishes that “a person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse.” See N.Y. Penal Law § 255.15 (McKinney 2003). New York Domestic Relations Law states that “a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living....” N.Y. Dom. Rel. Law § 6 (McKinney 2003). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).
To rebut the presumption of validity on the grounds of Raymond's bigamous act, Joan must prove that, at the time of her marriage to Raymond, Raymond and Eileen had been validly married and the marriage had not terminated by annulment, divorce, or Eileen's death, even though this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, Joan must establish that Raymond's prior marriage to Eileen was “valid” by disproving through clear and convincing evidence “every reasonable possibility which would validate” the prior marriage. Seidel, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence of a divorce or annulment in a diligent record search of all counties in which both parties to the first marriage have resided will suffice to rebut the presumption. Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re Brown's Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the “strong evidence” of a certified statement as to a record search constituted prima facie evidence of no record of divorce and outweighed the oral testimony of putative spouse and presentation of an uncertified divorce decree); In re Lancaster's Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was sufficiently rebutted on the basis of appellant's testimony that he never instituted nor was served with any dissolution proceedings; no record of divorce in a search of all five New York City boroughs in which decedent resided; and decedent's false statement on her marriage license application that she had never before been married or divorced); In re Bauer's Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where there were no children, the presumption was sufficiently rebutted on showing that decedent's first husband was still alive at and after the second marriage had been entered, and that decedent had falsely declared single status in executing her application for the subsequent marriage license).
b. Raymond's Indictment for Perjury and Possible Bigamy:
Based on the record, it can be reasonably inferred that Raymond was initially charged with bigamy for marrying Joan while he was still married to another living woman. He was then indicted for perjury in the first degree. At the time of Raymond's indictment, a conviction for perjury in the first degree required materiality to the action or matter involved. If he had been convicted of first degree perjury, then we might have assumed that Raymond falsely stated in his second marriage application that he was never before married and never before divorced, and that but for his false attestation, no marriage could have been contracted between Joan and Raymond. Raymond, however, was not convicted of first degree perjury but pled guilty only to second degree perjury. In 1958, a conviction for perjury in the second degree did not require materiality to the action at hand. Because second degree perjury did not require materiality to the action, we may not assume that Raymond admitted to having married Eileen prior to marrying Joan and that his marriage to Eileen was still valid at the time he married Joan. Accordingly, Joan may not rely on Raymond's guilty plea to perjury in the second degree as evidence of a valid marriage existing between Raymond and Eileen at the time of Joan's marriage to Raymond.
Thus, Joan must present clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. Additionally, Joan must provide proof of a diligent search of all records in all counties in all countries in which Eileen and Raymond resided to show that the marriage was never terminated. SSA may assist her. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits on Emil's record.
2. Possible Invalidity of the Emil-Theresa Divorce:
Prior to his marriage to Joan, the record indicates that Emil was married to, and divorced from, Theresa. Emil and Theresa, however, may not have been validly divorced. If the grant of divorce between Emil and Theresa was not legitimate, then Joan's marriage to Emil would be void and she could not receive benefits as Emil's spouse. Furthermore, we note that because Joan and Emil did not reside together at the time of her application for spousal benefits, Joan may not receive benefits as Emil's deemed wife. If further development of the facts by the SSA establishes that the divorce between Emil and Theresa was invalid, then Joan cannot receive benefits as Emil's spouse because his marriage to Theresa was never terminated. There are no copies of a marriage certificate or application for a marriage license for Emil and Theresa. Although your records contain a copy of Emil and Theresa's divorce decree, it is possible that the divorce decree may have been invalid, either because of jurisdictional infirmities arising from Theresa's failure to establish bona fide residence in Alabama or because the divorce may have been fraudulently granted.
a. Issues of Jurisdiction
With respect to the issue of Theresa's residency in Alabama, the Alabama Supreme Court has explicitly held that “Alabama courts have no jurisdiction over the marital status of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred on the courts, even with the parties' consent.” Winston v. Winston, 279 Ala. 534, 537 (1966)(reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama established that “[w]hen the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved….”
In this case, there is a question as to whether Theresa established a bona fide residence in Alabama when she instituted divorce proceedings against Emil, given that the divorce decree provided no information on her city or county of residence and only listed “Ala.” as her state of residence. And, if Theresa was a resident, we do not have any information regarding the length of her residency. Although Emil noted in his application to marry Ellen that Theresa had served him with summons in Brooklyn, we do not have a copy of the summons. Further factual development by the SSA, especially review of the allegations regarding residence contained in the summons, should be undertaken to determine Theresa's residency status at the time of the divorce proceedings.
The issue of the validity of Emil and Theresa's divorce is further complicated by the possibility that their divorce decree may have been fraudulently granted by Judge Moore. Charges were brought against Judge Moore in 1964 for granting over 5000 divorces to nonresidents in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972)(affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge Moore's stamped or typed name, an embossed court seal, and certification by the Register in Chancery attesting that the decree was on file and recorded in the records of the Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled and unrecorded. Edwards, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed the trial court's jury instruction that “if you find from the evidence that a divorce decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of Alabama was not signed by the Judge of that court and did not in some other way reflect that it was the decision of the court and was not filed or enrolled in the records of that court, then you would be justified in finding that such a decree was not a valid divorce decree.” Id. at 882 (emphasis in original)(citations omitted).
The relevant facts in the record are insufficient to determine whether the Emil-Theresa divorce was fraudulently granted. First, Emil admitted that he did not appear in person in court. Second, the divorce decree listed Theresa's residence as “Ala” but included no other information on residency for Theresa or Emil. Third, the divorce decree contained no signature by Judge Moore. Fourth, although the divorce decree contains a signature by Dorothy H~, State Registrar, attesting to the embossment by official seal, the date of her signature appears to be June 19, 1995. Finally, the divorce decree, on its face, appeared to have been validly recorded in the Alabama Department of Health, Bureau of Vital Statistics. Accordingly, further research must be conducted to ascertain whether Judge Moore fraudulently granted a divorce to Emil and Theresa. We suggest that the SSA request official copies of Emil and Theresa's divorce decree from the Winston County Clerk at the Winston County Vital Records and the Alabama Department of Public Health, Center for Health Statistics, Office of Vital Records. The addresses are:
We recognize that the ultimate burden of proof lies with Joan to prove that she is entitled to benefits as Emil's spouse. However, because the SSA, an uninvolved party to the Emil-Theresa marriage, questions the validity of the Emil-Theresa divorce and because the SSA has greater investigative resources than Joan, the courts of New York will likely find that the SSA has the burden of conducting the substantial records searches required to determine the validity of the Emil-Theresa marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972)(holding that “[g]iven the comparatively great investigative resources of the Secretary and the apparently restricted means of appellant, it seems more appropriate to require the agency to undertake the substantial record searches necessary to negative the continued validity of [the prior marriage] … [particularly as] the presumption favoring a later marriage assumes greater force where…the later marriage is attacked, not by a putative first wife or children of the first marriage, but instead by a party, like the Secretary, who is altogether a stranger to any domestic relationship in question”); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983)(where plaintiff requested that the Secretary conduct the considerable record searches required to prove the continued validity of her husband's prior marriage, “[i]t was not the plaintiff's responsibility to ferret out this information. It was the Secretary's obligation to overcome the presumption of the validity of [plaintiff's] marriage”). It is important to note, however, that if, after reasonable efforts, the evidence is inconclusive or insufficient to establish the invalidity of Emil's divorce from Theresa, the presumption of validity attaches to Emil's marriage to Joan. Joan, therefore, might be entitled to receive spousal benefits as the wife of Emil, assuming, of course, that she has sufficiently demonstrated that her marriage to Raymond was void.
c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:
The Supreme Court of New Jersey has held that where the validity of an “ancient foreign divorce” is challenged, equitable principles of fairness will apply to defeat invalidation. Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998)(holding that although husband provided sufficient evidence to rebut the presumption of validity of his marriage, including undisputed evidence of jurisdictional defaults associated with his wife's prior 1968 Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the validity of marriage based on the invalidity of wife's prior divorce). The court cautioned against “the human and legal problems that would result if those ancient foreign divorces are found to be invalid many years later.” Id. at 916, 152 N.J. at 233.
In determining whether a prior, ancient divorce will be found invalid, the court will consider factors such as “(1) the length of time the parties were [subsequently] married, (2) the acts undertaken by the parties that indicate they held themselves out to as husband and wife, and (3) the good faith of the party who procured the first divorce.” Heuer, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, Emil was married to Joan on July 21, 1962, and then to Ellen from August 7, 1965 to the present time. There is nothing in the record to indicate that Emil did anything other than to hold himself out to the public as married to Joan and later to Ellen. There is also no indication that Emil was involved in fraud. The record is not sufficient, however, to determine whether Theresa acted in good faith in procuring the divorce.
Given the language of the Heuer decision, a court in New Jersey would likely find that the divorce between Theresa and Emil was valid, even if additional factual development of the record conclusively determined that there was jurisdictional error, a fraudulent grant of divorce, or fraud on the part of Theresa in pursuing a divorce in Alabama. If it turns out that Emil participated in the fraud, especially if Joan was also involved, you should contact us to discuss the issue.
In conclusion, to receive spousal benefits on Emil's record, Joan must provide clear and convincing evidence that Raymond was validly married at the time of her marriage to him, and that his prior marriage had never been terminated. If Joan can provide evidence sufficient to establish that her marriage to Raymond was void, the validity of Emil's divorce from Theresa must be considered as discussed above. If Joan is unable to carry her burden of proof, the presumption of validity attaching to her marriage with Raymond will continue, and she cannot receive benefits as Emil's spouse.
Barbara L. S~
Chief Counsel, Region II
Assistant Regional Counsel