PR 05110.028 Missouri
A. PR 04-021 Entitlement to Mother's Benefits under Missouri Law Where Divorce From Prior Husband was not Finalized Before Subsequent Marriage.
DATE: October 7, 2003
The claimant for mother's benefits married the NH before the filing of the decree dissolving her marriage to her prior husband. Under Missouri law, there is clear, cogent, convincing, and satisfactory evidence to overcome the presumption of the validity of the claimant's marriage to the NH.
Ms. Charlene L~ (SSN ~) applied for mother's benefits based on the record of her deceased husband, Reid Derek L~ (SSN ~). You have asked for advice as to whether the State of Missouri would recognize a marriage between Charlene L~ and Reid Derek L~ which occurred on June 28, 1986, when the divorce of Ms. L~ from her previous husband (Henry W~) was not finalized until July 8, 1986.
The information you provided indicates that Ms. L~ previously applied for benefits on her deceased husband's record, Reid Derek L~, on December 23, 2002. Her application was denied for failure to provide proof of divorce from her previous husband, Henry W~.
Ms. L~ applied again on May 30, 2003. A marriage certificate indicates that Charlene W~ and Reid Derek L~ were married on June 28, 1986. A birth certificate indicates that they had a child together. Court records indicate that the dissolution of marriage between Charlene W~ (L~) and Henry W~ was entered on July 8, 1986, or 10 days after Ms. L~'s subsequent marriage to Reid Derek L~.
Missouri statutes provide in relevant part:
1. A judgment or dissolution of marriage is final when entered, subject to the right of appeal. An appeal from a dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the judgment which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.
See Mo. Ann. Stat. § 452.360.1. Thus, if neither party appeals the finding that the marriage was "irretrievably broken," the divorce is final when entered and both parties are free to marry.
In James v. James, 45 S.W. 3d 458, 460 (Mo. App. S.D. 2001) (citing Dunafon v. Dunafon, 800 S.W. 2d 483, 484 (Mo. App. W.D. 1990)), the court held that a judgment granting a dissolution of marriage was final when entered. In Stamatiou v. El Greco Studios, Inc., 898 S.W. 2d 571, 575 (Mo. App. W.D. 1995), the court stated: "In enacting § 452.360.1 the legislature intended that the part of the decree dissolving the marriage would become final by operation of law if it were not appealed, thereby allowing the parties to remarry even if other matters in the dissolution were appealed." See also Stratman v. Stratman, 948 S.W. 2d 230, 234 (Mo. App. W.D. 1997). From the case law, it is clear that Missouri courts have interpreted the statute to allow an individual to remarry when neither party has contested the finding that the marriage is irretrievably broken because the judgment is then final.
In Ms. L~'s (W~'s) case, although apparently neither party contested the finding that the marriage was irretrievably broken, Ms. L~'s second marriage occurred prior to the filing of the decree dissolving her first marriage to Henry W~. Thus, the judgment was not final. In fact, it had not even been filed prior to Ms. L~'s second marriage. Missouri case law has consistently held that a second marriage is presumed to be valid. See Chervitz v. Bi-State Development Agency, 11 S. W. 3d 714 (Mo. App. E.D. 2000); Estate of Lucas v. Lucas, 909 S.W. 2d 365, 369 (Mo. App. S.D. 1995); Sumners v. Sumners, 645 S.W. 2d 205 (Mo. App. S.D. 1983); Carr v. Carr, 232 S. W. 2d 488, 489 (Mo. 1950). A second or subsequent marriage will not be declared invalid except upon clear, cogent, and convincing evidence. See Chervitz, 11 S. W. 3d at 717; Lucas, 909 S. W. 2d at 369; Enlow v. Fire Protection Systems, Inc., 803 S. W. 2d 148, 150 (Mo. App. E.D. 1991); Carr, 232 S. W. 2d at 489 (presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence). Thus, the question in this case, is whether there is clear, cogent, convincing, and satisfactory evidence to overcome the Missouri presumption that Ms. L~'s second marriage is valid. We believe it is reasonable to conclude that a Missouri court would find that there is clear, cogent, convincing, and satisfactory to overcome the presumption of validity.
There is no case law directly on point, however, the Missouri Supreme Court stated in State v. Byrd, 676 S. W. 2d 494, 501 (Mo. 1984), that "defendant's admission that his second marriage was invalid was sufficient to overcome the presumption of its validity. That statement goes beyond the assertion that he did not obtain a divorce from his fi