TN 6 (10-10)

PR 05110.016 Illinois

A. PR 10-153 Request of Legal Opinion- Were Perley W~ and Richard W~ legally divorced? – REPLY Your Reference: ~ D Our Reference: 10-0105

DATE: September 23, 2010

1. SYLLABUS

Illinois law presumes that the latter of two conflicting marriages is legal; however, evidence that affords reasonable grounds for concluding that there was no divorce following the first marriage can rebut this presumption.  In this case, the NH claimed in an earlier claim for benefits that he had secured a divorce from the claimant, but he did not submit a divorce decree.  SSA confirmed the lack of a divorce during the applicable time period in Illinois, where records show the NH lived the entire time. In the absence of additional information from the now-deceased NH about the divorce, which we would normally request, it is reasonable to conclude that the claimant’s statements and the lack of evidence showing a divorce provide reasonable grounds for concluding that no divorce occurred and that the claimant is the NH’s surviving spouse.

2. OPINION

You asked us whether Perley W~ and Richard W~ were legally divorced per GN 00305.170B3. The claimant, Perley W~, seeks widow's benefits on Richard W~’s account. We believe, for the reasons discussed below, that an Illinois court would find that Perley W~ and Richard W~ were not divorced. Thus, Perley would be entitled to benefits as Richard’s surviving spouse.

BACKGROUND

Perley and Richard were married sometime before 1953. Perley alleged that they separated sometime around 1953. She claims that she never divorced him, and never received notification that he divorced her. On February 15, 1989, Perley applied for benefits on Richard’s account. Perley’s claim was denied at that time because Richard alleged that he divorced her. However, no divorce decree was apparently submitted. Richard alleged that he remarried a woman named Carol. He subsequently received benefits as a young husband with child in care on Carol’s account.

Richard is now deceased, and Perley has applied for surviving spouse benefits on his record. According to your records, Richard lived in Chicago, Illinois the entire time up to his death. SSA confirmed that there was no divorce on file from 1947 thru the present in the State of Illinois.

DISCUSSION

In order to be entitled to widower’s benefits on Richard’s account, Perley must be Richard’s "widow" or "surviving spouse." The Act provides that "[a]n applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which [such insured individual] was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married . . . at the time he died." 42 U.S.C. § 416(h)(1)(A)(i).  The issue here is whether Perley was Richard’s spouse at the time of his death. We conclude that an Illinois court could find that Perley was validly married to Richard at the time of his death, and therefore is his surviving spouse.

According to your records, Richard lived in Chicago, Illinois the entire time. Sometime after he separated from Perley, he allegedly married Carol. Illinois presumes that the last of two conflicting marriages is valid. See POMS PR 05105.016 (PR 86-039); Davis v. Califano, 603 F.2d 618 (7th Cir. 1979); Sparling v. Industrial Commission, 270 N.E. 2d 411 (Ill. 1971); Baer v. DeBarry, 175 N.E. 2d 673 (Ill. App. 1971). Thus, in the absence of evidence to the contrary, the divorce between Richard and Perley will be presumed in order to sustain his subsequent marriage to Carol. However, this presumption may be rebutted “by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured.” Sparling, 270 N.E. 2d at 413. This standard is not a strict one. In Sparling, the Illinois Supreme Court found the presumption rebutted on the basis of the prior wife's testimony, along with the lack of evidence that a divorce had been obtained prior to the deceased's second marriage (although divorce records were not checked). Similarly, in Davis v. Califano, 603 F.2d 615 (7th Cir. 1979), the Seventh Circuit, after examining Illinois law, found that the presumption of the validity of the second marriage was rebutted by the testimony of the first wife and by searches of the divorce records of the wage earner's places of residence, which revealed nothing. The issue in this case, is whether there is sufficient evidence to rebut the presumption.

Perley maintains that that she never received notification that Richard divorced her. Although Richard claimed in 1989 that he divorced her, he never submitted a divorce decree. SSA confirmed that there was no divorce