TN 5 (11-07)
PR 05110.005 Arkansas
A. PR 08-122 Presumption of the Validity of the Last Marriage under Arkansas Law (NH Willie G~; SSN ~) - REPLY
DATE: June 9, 2008
A subsequent marriage between a number holder and a claimant occurred before the NH divorced his prior wife is presumed valid under Arkansas law. Positive proof is necessary to rebut the presumption. Burden of proof on the party attacking the subsequent marriage is difficult to satisfy.
This memorandum is in response to your request for an opinion regarding whether a second marriage between a number holder and a claimant that occurred before the number holder divorced his first spouse is presumed valid under Arkansas law. In our opinion, the second marriage between the number holder and the claimant is valid because Arkansas law presumes the validity of the last marriage.
As we understand the facts, Willie G~(number holder) married Josie G~ in July 1960. The marriage produced two children. A Westchester County, New York, divorce decree showed that the two were divorced on July 10, 1985. Ms. G~ died in May 1988.
On December 18, 1984, the number holder married Signe B~ (claimant) in Pennsylvania. The marriage certificate noted that the number holder's previous marriage to Ms. G~ dissolved by the death of Ms. G~ on March 11, 1981. The claimant stated that, after her marriage to the number holder, they lived in Yonkers, New York. Subsequently, she moved to Pennsylvania to care for her parents, and the number holder remained in New York and then relocated to Arkansas. The claimant stated that they had a "commuter marriage" where the number holder visited her in Pennsylvania on weekends and during the summers. The marriage produced one son, James G~, who was born on January 18, 1988. On December 10, 2004, the number holder died in Mississippi while domiciled in Arkansas.
In 1992, the number holder received Title II Social Security disability benefits. The Agency awarded auxiliary Social Security benefits to the son, James, and then to the claimant after an initial denial. In April 2005, after the number holder's death, the Agency awarded a lump sum death payment to James instead of the claimant because she was not living in the same household with the number holder at the time of his death. In January 2006, the claimant filed for widow's benefits, which the Agency denied because the Agency did not have enough evidence to establish a valid marriage between the claimant and the number holder. In September 2007, the claimant re-filed for widow's benefits, which the Agency denied, and she filed for reconsideration. During the reconsideration process, the Agency received the July 10, 1985, divorce decree between the number holder and Ms. G~.
The Social Security Act provides that a claimant is entitled to widow's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a). A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. In this case, the number holder died while domiciled in Arkansas; therefore, Arkansas law is controlling.
Arkansas law provides that a ceremonial marriage to a person who has previously been married and never obtained a divorce is void. Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953). However, a presumption exists under Arkansas law that the last ceremonial marriage is valid. Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985). This presumption can only be rebutted by the party attacking the validity of the last marriage and with "clear and decisive" evidence that a divorce was not obtained prior to the second marriage. Id; Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938). The presumption is a strong one. See Sims v. Powell's Estate, 432 S.W.2d 838, 840 (Ark. 1968) ("positive proof" is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (burden of proof on the party attacking the subsequent marriage is difficult to satisfy). Based on the record, the Agency would not be able to show that the first spouse, Ms. G~, did not divorce the number holder prior to the number holder's subsequent marriage to the claimant.
The Arkansas Supreme Court found that a widow was entitled to receive damages for the negligent death of her second spouse, despite evidence that she divorced her previous spouse after she married her second spouse. Missouri Pacific R.R. Co., 120 S.W.2d at 696. Although the widow had not obtained a divorce decree until after entering into the second marriage, the court stated that no "clear and decisive evidence" existed that her previous husband had not divorced her before her subsequent remarriage. Id.
In a similar case, a number holder married a claimant in 1942, although he did not obtain a divorce from his first spouse until 1963. The Agency denied the claimant widow's benefits and argued that the 1963 divorce was sufficient evidence to rebut the presumption of the validity of the second marriage. The Eighth Circuit Court of Appeals disagreed, citing, as support, to the Missouri Pacific case and found that the Agency had not "proved the negative" by showing that the first wife had not divorced the number holder prior to his marriage to the claimant. Stokes, 773 F.2d at 991-92; see also Noble v. Bowen, No. 87-224, 1989 WL 280358 *2 (E.D. Ark. 1989) (court vacated Agency's denial of widow's benefits because no clear and decisive evidence existed that claimant's first husband did not divorce her prior to her remarriage to the number holder).
In this case, the number holder's 1984 marriage to the claimant would represent evidence of the validity of his marriage to the claimant. Although the number holder's 1985 divorce from Ms. G~ is evidence that he had not previously divorced Ms. G~, and was, therefore, legally married to Ms. G~ until 1985, the possibility remains that Ms. G~ previously divorced him. Because this possibility remains, we do not believe the Agency can establish "clear and decisive evidence" to rebut the presumption of the validity of the number holder's second marriage to the claimant.
In an attempt to obtain information regarding whether Ms. G~ previously divorced the number holder prior to his marriage to the claimant, the Agency interviewed the number holder's children from his first marriage to Ms. G~. The information received was not determinative on whether Ms. G~ might have obtained a divorce from the number holder. Both children thought that the number holder and Ms. G~ never divorced, despite the 1985 divorce decree. The Agency reviewed Ms. G~'s 1988 funeral obituary and death certificate, which listed the number holder as the surviving spouse. However, Ms. G~'s children provided the information contained in the funeral obituary and death certificate, which, due to the 1985 divorce decree, is apparently incorrect information. The Agency also searched for divorce records in Philadelphia, Pennsylvania, Yonkers, New York, New York City, New York, and Lake Village, Arkansas, but did not find a divorce decree relating to the number holder's and Ms. G~'s marriage, other than the 1985 divorce. However, this does not prove that Ms. G~ did not obtain a divorce in some other county or state. See Spears v. Spears, 12 S.W.2d 875, 877 (Ark. 1928) (wife failed to show that husband did not obtain a divorce in some other county or state in which he lived or in which he established a temporary residence for the purpose of obtaining a divorce). As such, we believe that, under Arkansas law, the Agency has not obtained clear and decisive evidence that Ms. G~ or the number holder did not obtain a divorce prior to the number holder's marriage to the claimant.
In this case, similar to the Missouri Pacific and Stokes cases, the Agency is unable to establish that Ms. G~ did not divorce the number holder prior to his marriage to the claimant and, thus, the Agency has not rebutted the presumption that the last ceremonial marriage is valid. Hence, we believe that the State of Arkansas would uphold the validity of the marriage between the number holder and the claimant, so the claimant should be considered the number holder's widow.
Traci B. D~
Regional Chief Counsel
Carolyn E. W~
Assistant Regional Counsel
B. PR 07-226 Arkansas State Law - Presumption of Validity of Last Marriage (Including Presumption of Death) (NH Willie H~; SSN ~) - REPLY
DATE: September 28, 2007
Under Arkansas law a marriage that is not recorded is not void. The evidence presented does not support a conclusion that the claimant's prior marriage was terminated by a presumed death of her prior spouse. Nevertheless, Arkansas law presumes the validity of the last marriage. The party contesting the validity of the last marriage must prove by “clear and decisive evidence” that a prior marriage did not terminate before the last marriage occurred.
You requested our opinion on whether a marriage between Willie H~ (H~), the number holder, and Phyllis T~ (T~), the claimant, is presumed valid under Arkansas law. Specifically, you asked whether T~'s prior marriage was void because she did not record the marriage license. You also asked whether T~'s prior marriage was terminated by the presumed death of her spouse under Ark. Code Ann. § 9-11-108 (2007). Finally, you asked whether the Agency requires any further development to resolve the issue of whether T~'s prior marriage was terminated by death or divorce prior to her marriage to H~. We conclude that under Arkansas law a marriage that is not recorded is not void. Further, the present evidence does not support a conclusion that T~'s prior marriage was terminated by a presumed death of her prior spouse. Nevertheless, we conclude the marriage between H~ and T~ is valid because Arkansas law presumes the validity of the last marriage.
As we understand the facts, T~ married Relles A~ (A~) on March 15, 1986. T~ and A~ obtained a marriage license and T~'s brother, a minister, officiated the marriage ceremony. The couple did not return the marriage license to the county court clerk for recording. Instead, T~ stated that A~ became angry at her two days after the ceremony, tore up the marriage license, and told her he was divorcing her in the custom of his country. T~ reported that she never saw A~ again. She stated she believes he returned to Mexico.
On August 12, 2005, T~ and H~ were married. The couple never lived together as husband and wife. T~ stated that she married H~ so she could help him handle his affairs. On April 26, 2007, H~ died in Arkansas. T~ later filed an application for disabled widow's benefits on H~'s record.
The Social Security Act provides that a disabled widow is entitled to benefits if she was validly married to the number holder and meets the other requirements for eligibility. 20 C.F.R. § 404.336. When determining who is a widow for purposes of entitlement to Social Security benefits, the Agency looks to the laws of the state where the deceased number holder had a permanent home at the time of his death. See 42 U.S.C. § 416(h)(1); 20 C.F.R. § 404.345. Because H~ died while domiciled in Arkansas, we look to Arkansas law.
Although Arkansas law provides that any person who obtains a marriage license must return the license to the county court clerk for recording within 60 days, Ark. Code Ann. § 9-11-218 (2007), the Arkansas Supreme Court held that the marriage licensing statutes are “merely directory,” rather than mandatory. DePotty v. DePotty, 295 S.W.2d 330, 330-31 (Ark. 1956). Thus, a couple's failure to properly record their marriage under section 9-11-218 does not make the marriage void. Fryar v. Roberts, 57 S.W.3d 727 (Ark. 2001). In Fryar, a couple obtained a marriage license and took part in a wedding ceremony officiated by the husband's cousin, who was a minister. After the ceremony, the wife took possession of the marriage license and, with the husband’s consent, burned it. She stated that the couple did not intend the marriage to be legal. Later, the husband filed for divorce and requested a division of property acquired during the marriage. The Arkansas Supreme Court found that evidence that the couple obtained a marriage license and were married by a minister could establish a legal marriage. The Court stated returning the license was only evidence that a marriage had been performed and did not constitute the marriage itself. Id., at 441.
The fact that A~ destroyed the marriage license and did not return it to the county court clerk does not make the marriage between T~ and A~ void. As in Fryar, the couple obtained a marriage license and solemnized their marriage before a minister. Thus, the marriage between T~ and A~ was valid under Arkansas law.
Arkansas law also recognizes a presumption of a spouse's death under certain circumstances. Ark. Code Ann. § 9-11-108 (2007). Specifically, the law provides that:
In all cases where any husband abandons his wife, or a wife her husband, and resides beyond the limits of this state for the term of five (5) successive years, without being known to the other spouse to be living during that time, the abandoning party's death shall be presumed. Any subsequent marriage entered into after the end of the five (5) years shall be valid as if the husband or wife were dead.
Id. The party relying on the presumed death of a spouse has the burden to produce evidence to establish the presumption. There must be an abandonment where one spouse deserts the other without consent or justification and with no intention of returning. Watson v. Palmer, 240 S.W.2d 875, 876 (Ark. 1951). In addition, the evidence must establish that the abandoning spouse left the state. The court does not infer the abandoning spouse's death nor his absence from the state simply from his disappearance. Baxter v. Baxter, 334 S.W.2d 714, 715 (Ark. 1960). In Baxter, a woman sought a declaratory judgment that her first husband was dead and that her marriage to her second husband was valid. The woman stated that she did not know where her first husband grew up, and she did not know anything about his relatives or friends. After he left her, the woman simply never heard from her first husband again. The court denied the woman's request, stating that she had the burden of producing evidence that her first husband had lived continuously outside Arkansas for at least five years before her remarriage. The court stated that the woman was required to provide sufficient evidence of the first husband's intent to leave the state or of a diligent, but unsuccessful, search for him. But the court held that the woman's ex parte request for a declaratory judgment was unsupported by comparable testimony that might take her first husband's whereabouts out of the realm of pure speculation. Id., at 715.
T~ has also not supplied sufficient information from which we can presume that A~ is dead. Like the woman in Baxter, T~ reported that she does not know any of A~'s relatives. Although she stated she believes that A~ returned to Mexico, there is no supporting evidence to establish either that A~ actually left Arkansas or that T~ performed a diligent, but unsuccessful, search for him prior to her marriage to H~. Rather, T~ stated she married H~ believing that her marriage to A~ was not valid because the couple did not return the license. Thus, we conclude that T~ is unable to meet her burden of providing sufficient evidence to establish the presumption of A~'s death.
Even though T~ cannot rely upon the presumption of death of her spouse, her marriage to H~ is valid because Arkansas law presumes the validity of the last marriage. The burden of proving that the last marriage is not valid is on the party attacking the marriage, and the presumption is a strong one. The party contesting the validity of the last marriage must prove by “clear and decisive evidence” that a prior marriage did not terminate before the last marriage occurred. Thus, the Agency is required to “prove the negative,” that the earlier spouse did not divorce the number holder. Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985).
The Arkansas Supreme Court has found that a widow was entitled to receive damages for the negligent death of her spouse, despite evidence that a divorce from her prior husband did not become final until after she married her second husband. The court stated that there was no “clear and decisive evidence” that her previous husband had not divorced her prior to her later marriage. Missouri Pacific R.R. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938).
The Eighth Circuit cited Missouri Pacific as support for its holding in Stokes. In Stokes, the number holder married the claimant in 1942, even though he did not divorce his first wife until 1963. The Agency denied the claimant's application for benefits on the number holder's record, arguing that the 1963 divorce decree rebutted the presumption of the validity of the later marriage. The Eighth Circuit disagreed, stating that the 1963 divorce was evidence that the number holder had not previously divorced his first wife. The court held that the Agency had not “proved the negative” by showing that the first wife had not divorced the number holder prior to his marriage to the claimant. Stokes, 773 F.2d at 992-93.
Thus, we conclude that the marriage between T~ and H~ was valid because Arkansas law presumes the validity of the last marriage. Although T~ admittedly never divorced A~, the possibility remains that A~ previously divorced T~. As in Stokes, the Agency is unable to establish the negative that A~ did not divorce T~ prior to her marriage to H~. In summary, we believe that Arkansas law would uphold the validity of the marriage between T~ and H~.
Tina M. W~
Regional Chief Counsel
James D. S~
Assistant Regional Counsel