PR 05705.055 Wisconsin
A. PR 83-020 Putative Marriage in Wisconsin - James E. B~, Wage Earner, SSN ~, Claimant - Doris B~ SSN ~
DATE: July 12, 1983
LEGAL SPOUSE NOT ENTITLED TO INHERIT (K~ CASE) -- Separation from bed and board
The act of living apart pursuant to a separation for a period of five years without a request on the part of either party for reconciliation permits the granting of a absolute divorce only upon suit for one of the parties. An affirmative action to secure the final divorce on the part of at least one of the parties is required. (B~ , James E., ~ -- RAV (A~ ), to RC, 07/12/83.)
UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- Putative marriage
The putative marriage statute in Illinois (where in this case the purported marriage was contracted) confers only property rights in the obliged spouse (maintenance and support) but does not validate a previous invalid marriage. Property rights so acquired have no extraterritorial effect on the determination of intestate personal property of an individual domiciled in Wisconsin. (B~ James E., ~ -- RAV (A~), Co RC, 07/12/83.)
Wisconsin law does not provide for the recognition of a putative marriage. (B~ James E., ~ -- RAV (A~ ), to RC, 07/12/83.)
This is in response to your request for our assistance in determining whether Doris B~ is entitled to Social Security benefits as the "putative" spouse of James E. B~ . We conclude, for the reasons set forth below, that the claimant is not entitled to wife's benefits.
Based upon the materials furnished to us, the relevant facts are as follows. The wage earner, James E. B~ ("James"), married Marvel B~ in Wisconsin on July 1, 1939. The parties were legally separated on June 12, 1943, 1/ but were never divorced. Marvel Bm ("Marvel") never remarried and has been receiving wife's benefits on James account. 2_/
A ceremonial marriage was performed between James and Doris B~ in Waukegan, Illinois on November 22, 1963. 3_/ Doris and James separated on August 1, 1975, and apparently are still separated although James indicated on a May 27, 1982 spouse's certification that he was getting a divorce. There is no evidence in the claims folder to establish that a divorce has been granted or that any legal steps have been taken to obtain a divorce.
On January 18, 1982, Doris filed for wife's benefits on James account. James was domiciled in Wisconsin at the time of this application, and apparently is still domiciled in Wisconsin. Because you believed James was still legally married to Marvel at the time of his marriage to Doris, and thus Doris could not be a legal wife, you inquired whether she could be considered a "putative spouse" of James. 4_/
1. Was James legally divorced from Marvel before he married Doris?
2. Whether Wisconsin, the domicile of the wage earner, recognizes a "putative spouse" either under its own laws or the laws of the site of the marriage?
3. Assuming Wisconsin will recognize a "putative" spouse, whether Doris satisfies the requirements of a "putative spouse" under Illinois law, the site of her marriage?
The Social Security Act and its implementing regulations provides that a claimant is entitled to benefits as the wife or widow of a wage earner by satisfying one of four different tests: 1) a valid ceremonial marriage, 2) a "deemed" or "de facto" marriage, 3) a common-law marriage recognized under applicable state law or 4) a "putative" marriage recognized under applicable state law. 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344-404.346, 404.723-404.727, POMS GN O0 305.040. The state law which governs is controlled by the domicile of the wage earner either at the time of the claimant's application or the domicile at the time of the wage earner's death. Id. In this case, the wage earner was domiciled in Wisconsin at the time of Doris' application for benefits, and therefore, Wisconsin law governs.
Wisconsin does not recognize common-law marriages entered into after 1917. In re V~ Estate 256 Wis. 214, 40 N.W.2d 588 (1950). Doris is not entitled to benefits as the "deemed spouse" of James under 42 U.S.C. §416(h)(1)(B) because she was not living with him at the time of her application. 20 C.F.R. §404.346. Thus, the issue in this case is whether either a valid ceremonial marriage existed between the parties or Doris satisfies the requirements of a "putative" spouse under Wisconsin law. We conclude, as discussed more fully below, that Doris is not entitled to benefits under either category.
A. Valid Ceremonial Marriage - The Validity Of James' Previous Divorce
As we noted previously, Doris married James in a ceremonial marriage in Illinois on November 22, 1963. However, James had married Marvel in Wisconsin on July 1, 1939. They were legally separated for several years after which James believed they were automatically divorced. Thus, our first question is whether such a legal separation may constitute a divorce in Wisconsin. 5_/
The claims folder contains almost no information concerning this separation. The only reference in the file is James B~ May 27, 1982 spouse's certification that he was legally separated from Marvel on June 12, 1943 and that the laws of Wisconsin provided for an automatic divorce after a seven year separation. James also indicated that "Social Services" in Milwaukee "made us" obtain-a legal separation. It is unclear what Social Services Organization he was referring to or why an organization would have an interest in his marital status. The only other reference to the "alleged" divorce is contained in a February 19, 1982 Report of Contact in which James states that he was never divorced. He claims again, however, that his legal separation became a divorce after seven years. 6/ Your office apparently concluded that this legal separation was not a divorce.
During our research of Wisconsin divorce law, we did not find any statutes or cases which support James' interpretation of the law, namely, that a legal separation automatically becomes a divorce. However, as noted above, we are at a disadvantage because we do not really know the nature of James' legal separation, the procedures James followed to obtain the separation, or if any court documents exist. A layman's description of a court document may not be accurate or complete. The claims folder does not contain any information concerning a possible search by the Social Security Administration ("SSA") of court papers during the relevant time periods. We recommend that SSA attempt to obtain additional information concerning this "alleged" divorce because it may impact on both the entitlement to and amount of both Marvel and Doris' Social Security benefits.
In order to aid your further investigation, we will set forth the Wisconsin divorce law which was applicable to James' "alleged" divorce from Marvel in 1943. During this period, Wisconsin statutes permitted two types of divorce: 1) a divorce from the bonds of matrimony, or divorce a vinculo matrimonii, or 2) a divorce from bed or board. 28 W.S.A. §247.04 (1957). 7_/
A divorce from bed and board, as set forth in the statute, is for a limited time and does not terminate a marriage; therefore, it does not preclude a woman from having the status of wife 8_/ under the valid marriage test of §216(h)(1)(A) of the Social Security Act. 42 U.S.C. §416(h)(1)(A); In re K~ Estate, 254 N.W. 639 (1934); H~, Lloyd, ~ , RA V (P~ ) to District Office, Milwaukee, Wisconsin, 10/23/61'. A divorce from bed and board may lead, however, to a divorce of matrimony or a final divorce:
Whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding the commencement of the action, the same may be granted at the suit of either party. And such living apart for five years or more, pursuant to a decree of divorce from bed and board, without request during that period by either party to the other in good faith for a reconciliation and revocation of said judgment, shall not be any bar to an absolute divorce upon this ground at the suit of either party...
28 W.S.A. §247.07(7)(1957). This section appears to require that an affirmative action be taken in order to secure a final divorce. See 28 W.S.A. §247.09 (1957); See Powless v. Powless, 269 Wis. 552, 69 N.W.2d 753 (1955). 9_/ There is only one piece of evidence to indicate that James may have taken some affirmative action to obtain what he categorized as a legal separation, namely, his statement that social services made him secure a legal separation. Such a separation seems to fit the definition of divorce from bed and board, not a divorce of matrimony. 10_/ Moreover, Marvel, in her May 6, 1980 application for wife's benefits, lists her marriage to James as "not ended." While this statement need not be accepted as true, it is further support that James never received a final divorce from Marvel. 11_/
Thus, it appears that James was never divorced from Marvel. Nonetheless, as noted previously, we recommend that you further investigate the divorce issue. However, for purposes of continuing our analysis, we will assume that James was married to Marvel at the time of his marriage to Doris.
B. Wisconsin Law Concerning The Recognition Of A "Putative" Spouse Under Either Its Own Law Or Illinois Law
1. Illinois Putative Spouse Law
As noted previously, Wisconsin law, as the domicile of the wage earner, controls the determination of Doris' marital status. The general rule is that the validity of a marriage is determined by the law of the place where it is contracted. 52 Am. Jut. 2d Marriage §80 (1970). Thus, a marriage which is valid under the law of the state in which it is contracted will be recognized as valid everywhere unless that marriage contravenes a strong public policy of the domiciliary state. Wisconsin follows this general rule. See In re - C~ Estate, 260 Wis. 625, 51 N.W.2d 709 (1952). The converse of this rule is also true, namely, that a marriage invalid where contracted is invalid everywhere. Kitzman v. Kitzman, 167 Wis. 308, 166 N.W. 789 (1918). Therefore, in this case, we must look to the law of Illinois, the state of Doris and James' marriage, to determine if Illinois would consider their marriage valid. We conclude, for the following reasons, that Doris and James marriage was not valid in Illinois.
At the time of their marriage, James was still married to Marvel and thus, not free to marry. 12_/ Ill. Rev. Stats. ch. 40, §212(a). Effective October, 1977, Illinois enacted the Marriage and Dissolution of Marriage Act, codified at Ill. Rev. Stats. ch. 40, §§101-802. See G~ , Ambers H~ ,~ , RA V (A~ ) to Director, IPB V, 12/11/80. Among the changes effected in Illinois law, two should be considered in our determination of the validity of the Illinois marriage in this case: the provision for recognition of a putative spouse (Ill. Rev. Stats. ch. 40, §305); and the provision by which a marriage, prohibited due to the existence of a legal impediment, becomes lawful by cohabitation of the couple after removal of the impediment. Ill. Rev. Stats. ch. 40, §212(b).
Regarding the latter provision, Doris and James' marriage could not be considered valid under §212(b) because the legal impediment, James previous marriage to Marvel, has never been removed. Thus, the only provision under which Doris and James' marriage in Illinois might be considered valid is §305, the "putative" spouse provision:
Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under Section 212, or declared invalid, under Section 301. If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interests of justice.
Section 305, thus, does not confer the status of legal spouse upon the individual or validate the marriage. It merely permits, in the interests of justice, the putative spouse to acquire rights in property. This interpretation is supported not only by the careful distinction made between legal spouse and putative spouse in this section, but also by the separate provision required, §212(b), for the validation of a previous invalid marriage. In summary, section 305 does not create a legal marriage in Illinois; therefore, Wisconsin would not consider Doris and James' marriage valid. In addition, the property rights acquired by a putative spouse in Illinois have no extraterritorial effect on the determination of the distribution of intestate personal property of an individual domiciled in Wisconsin. See John, ~ RA V (B~ ) to Regional Commissioner, 9/14/81 13_/
In conclusion, even assuming Doris met the definition of a putative spouse in Illinois, her marriage would not be considered valid in Illinois, and therefore, it is not considered valid in Wisconsin.
2. Wisconsin Law Concerning A Putative Spouse
Section 216(h)(1)(A) in part provides:
If such courts [state court] would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the
devolution of interstate [sic] personal property, have the same status with respect to the taking of such property as a wife, husband widow, or widower of such insured individual.
The law of the domicile of the wage earner governs the devolution of personal property. 16 Am. Jut. 2d Conflict of Laws §43 (1979). Thus, if Wisconsin recognizes a putative spouse, then Doris may still be entitled to Social Security benefits under the second test of §216(h)(1)(A).
Our review of Wisconsin marriage law indicates that Wisconsin has not adopted §209 of the Uniform Marriage Act which provides for the recognition of a putative spouse. As recently as 1979, Wisconsin has made amendments to its marriage law; these amendments are now called "The Family Code," and codified at W.S.A. §765.001 et seq. However, none of these amendments included a provision recognizing a putative spouse and providing for entitlement to the property rights. 14/ As intestate succession is limited by Wisconsin law to a spouse of the deceased (W.S.A. §852.01), and Doris is not a spouse under Wisconsin law, she is not entitled to share in James' intestate personal property.
C. The Requirements Of A Putative Spouse Under Illinois Law
Based upon our earlier conclusion that Wisconsin will not recognize an Illinois putative spouse, we need not address the issue of whether Doris would qualify as a putative spouse.
In conclusion, we believe that based upon the facts presently before us, Doris is neither James legal nor putative spouse. Accordingly, we conclude that Doris is not entitled to Social Security benefits as the wife of James.
1/ On James May 27, 1982 spouse's certification, he states that his marriage ended on that date, and further notes that "Social Services in Milwaukee made us obtain a legal separation." Thus, it is unclear if 1943 is the date James and Marvel actually separated or the date they obtained the legal separation.
2/ Marvel, in her May 6, 1980 wife's application for benefits, lists her marriage to James as "not ended." There is no record of any other marriage involving Marvel.
3/ Doris was previously married to John Z~ .They were divorced in 1946. In a February 3, 1982 Statement of Claimant, Doris claims that James advised her that he had been married previously to Marvel, but that they had been divorced. You have concluded that Doris married James in the good faith belief that he was free to marry.
4/ There are no issues raised concerning entitlement of children because neither Marvel nor Doris had any children.
5/ Unlike many other jurisdictions, Wisconsin does not follow the rule which presumes the second marriage to be valid absent evidence to the contrary. Williams v. Williams, 63 Wis. 58, 23 N.W. 110 (1885)(no rigid or absolute presumption of validity of second marriage). Even assuming that was the rule in Wisconsin, the evidence in this case would rebut that presumption. See discussion infra at pgs. 3-6.
6/ There are contradictory statements by James in the claims folder regarding his marital status: on a December 1, 1966 statement he indicated that he was not presently married, on a February 15, 1968 statement, he acknowledged Doris as his wife, and on a June 4, 1980 statement, he lists Marvel as his wife. Notwithstanding these inconsistent statements, some of which appear to be motivated by James concern that his marital status would reduce his benefits, the evidence in the claims folder does tend to support James' rendition of the facts as listed on his May 27, 1982 spouse's certification.
7/ Effective January 1, 1960, this statute was repealed and replaced by W.S.A. §767.04 which provides for two types of actions: 1) divorce, and 2) legal separation. The first action replaces divorce of matrimony and the second replaces divorce from bed and board. See W.S.A. §767.07.
8/ In such a divorce, property rights and interests remain unchanged. Weber v. Weber, 257 Wis. 613, 44 N.W.2d 571 (1950).
9/ Even assuming that James did not obtain a legal separation until 1977 when §247.09 was repealed and §767.09 was enacted, that section required an action by one of the parties to convert a decree of legal separation to a decree of divorce.
10/ However, a court does have the power to enter judgment for an absolute divorce in an action where the pleadings merely seek a divorce from bed and board. Hooker v. Hooker, 8 Wis. 2d 331, 99 N.W.2d 113 (1959). This underscores the importance of securing a copy of James' legal separation to make sure that he was not awarded an absolute divorce.
11/ It is interesting that Marvel does not mention her separation from James in any of her statements.
12/ As noted previously, for purposes of this discussion we are assuming that James' divorce was not valid.
13/ Similar conclusions have been reached in other cases in which the state of the wage earner's domicile did not recognize a putative spouse. See D~ Marion, ~, RA V (V~ ) to Assist. Reg. Comm., 8/28/81; B~ Harry, ~ RA V (C~ ) to Reg. Represent., 2/19/59.
14/ We believe this is especially significant in light of Wisconsin's history of liberal marriage laws. For example, Wisconsin law has contained a provision for the validation of previously invalid marriages since the early 1900's. W.S.A. §765.24 (formerly §245.35). Also Wisconsin, contrary to the majority of jurisdictions, considered bigamous marriages voidable rather than void. Halker v. Halker, 92 Wis. 2d 645, 285 N.W.2d 745 (1979); Corning v. Carriers Insurance Co., 88 Wis. 2d 1, 276 N.W.2d 310 (1979); Davidson v. Davidson, 35 Wis. 2d 401, 151N.W.2d 53 (1976). Thus, Wisconsin's failure to promulgate a putative spouse provision may even signify that such a "marriage" would be considered against public policy. We need not address that issue, however, in deciding this case.