You have asked whether a divorce between the number holder, Justino M~ (the "NH"),
and Manuela M~ (the "claimant"), granted on June 9, 1998, but not recorded for failure
to pay fees, is nonetheless valid.
SUMMARY OF EVIDENCE
The NH and the claimant were married in Alameda County, California in 1964. The claimant
petitioned for dissolution of the marriage in Alameda County on March 30, 1982. The
next day, the Alameda County court issued an order for modification, which addresses
child custody rights, child and spousal support requirements, residence issues and
attorney's fees through the impending hearing, which was scheduled for April 26, 1982.
The case number assigned to the divorce proceedings was H-82064-2. On a form page
after "Order to Show Cause" regarding the modification order, the court provided additional
notes. The care, custody and control of the parties' minor children was awarded to
the claimant with reasonable visitation rights to the NH, the NH was to pay $200 per
child per month in support payments and $600 per month in spousal support commencing
May 1, 1982. The NH was excluded from the family home.
The next document for case number "H082064-2" in the file is dated June 9, 1998. Under
the heading "Disposition," the document indicates that the Order to Show Cause was
"continued from" April 14, 1998. The claimant was not present. The NH's "motion to
bifurcate" was granted, and "subject to the respondent [the NH] paying the response
fee," judgment of dissolution of the parties' marriage was granted "as to status only."
The parties were "restored to the status of unmarried persons on June 9, 1998." Spousal
support was reduced to zero "as of April 14, 1998." The NH's attorney was "to submit
Judgment." A computer-generated history of the case indicated that a "judgment dissolution
status only" was filed on June 9, 1998. On the copy of the document in our file, this
entry was highlighted before being copied and thus is illegible. However, Virginia
W~ of the San Leandro Field Office referenced the entry in her original request for
assistance from the Regional Office on August 25, 2006.
Ms. W~ also indicated that these documents were provided to the field office by the
court. The computer-generated history indicates that action occurred in the divorce
in 1996, 1997, 2002 and 2003.
On August 28, 2006, the claimant applied for wife's insurance benefits as a divorced
spouse on the NH's account. In her application, she indicated that she married the
NH on October 15, 1964, and that her marriage ended by divorce on January 1, 1998
in California. She was not married at the time she applied. In an undated statement,
she indicated that the NH told her he was filing for divorce in 1996. She said she
had been notified of a court date in "about 1999" but did not appear at the hearing
because she did not want to be involved in a conflict with the NH. She stated that
she believed she was divorced because she had been awarded child and spousal support.
She said she went to the court to get a copy of her divorce decree and was told that
she was divorced but needed to pay for "the final divorce fees." The claimant indicated
that all proceedings took place in Alameda County.
In an August 10, 2006, development request, the Manteca, California Field Office noted
that, while the claimant said she was married to the NH until 1996 or 1997, the NH
reported on his application for benefits that he had been married to the claimant
until 1978, and had remarried in 1983. The request was to contact the NH and find
out if he ever received a final divorce and to get a copy of the order. The report
further indicates that the claimant's second wife was not old enough to file for benefits
but that the divorce issue needed to be resolved because it affected both women. In
the development notes, Technical Expert, Cindy G~, reported that she had contacted
the NH, who reported that he had separated from the claimant in 1978 and had "a paralegal
complete the documents." The NH said that he had remarried in 1983 thinking he was
divorced. He reported that, "about a year ago," his son-in-law went to the court to
get a copy of the divorce decree and was told that the judge did not sign the document.
Ms. G~ reported that the parties were in the process of requesting the court to grant
the divorce retroactively and would contact SSA as soon as the decree was available.
In a report of contact dated August 18, 2006, Claims Representative, Lupita T~, noted
that she had spoken with the NH, who stated that he had been informed by the Alameda
County court that his divorce was never finalized and was thus invalid. The NH said
that he had hired a man he thought was an attorney to handle the divorce but that
the final paperwork was never signed or submitted. The NH said he was advised that
"this had to be filed again" and that it could take up to six months. In the meantime,
the NH said he was informed that he was still married to the claimant. The NH was
advised to submit evidence of the divorce. He said that he believed he was divorced
when he married his second wife.
In her request for assistance, Ms. W~ noted that the field office checked with the
court clerk and was "told that [the parties] were divorced on June 9, 1998 but they
did not pay the final fee to have it recorded."
A claimant is entitled to wife's insurance benefits as a divorced spouse if she has
reached age 62 (or has a qualifying child in her care), is not married, and is not
entitled to old-age or disability insurance benefits, or is entitled to such benefits
in an amount that is less than half of the primary insurance amount of the NH. 42
U.S.C. § 402(b); 20 C.F.R. § 404.331 (2006). The claimant is considered a divorced
wife if she had been married to the NH for ten yeas prior to the date the divorce
became effective. 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a)(2) (2006) ("10 years
immediately before your divorce became final."). Program Operations Manual System
(POMS) GN 00305.170(B)(1)(c) directs further development when there is a "technical defect" in divorce
proceedings, "e.g., [the] decree was not recorded properly, court costs [were] not
paid, etc." The required development under this provision includes getting "a certified
copy of the divorce decree" and "[a] statement from the clerk of court as to whether
the records substantiate the allegation as to the defect" and "[c]ertifications of
the pertinent court record entries." POMS GN 00305.170(B)(2)(b). The field office's development of this matter indicates that the parties
were divorced on June 9, 1998, but their divorce was not recorded because they did
not pay the fee. Although the file contains conflicting information, the documents
provided by the court support this version of events.
The claimant's version of events is also similar to the court clerk's statement; she
reported that she had been told by the court that she was divorced but had not paid
the recording fee. The NH reported, however, that he had been told by the Alameda
County court that no divorce had occurred and he was still married to the claimant.
We doubt the accuracy of this statement given the fact that the court clerk told SSA
that the parties were divorced but for payment of the fee. Moreover, the records provided
by the court direct that "subject to the [NH] paying the response fee," dissolution
of the parties' marriage was granted, and the parties were "restored to the status
of unmarried persons on June 9, 1998."
As set forth above, the POMS also requires "a certified copy of the divorce decree."
Id. We do not have a copy of the decree here, although we do have documents from the
court indicating that the divorce was granted pending the NH's payment of the fee.
California law, moreover, provides that a court may enter an order of dissolution
of a marriage retroactively, i.e., "nunc pro tunc," if it determines that by "mistake,
negligence, or inadvertence, the judgment has not been signed, filed and entered."
Cal. Fam. Code § 2346(a) (2006). Statements from the NH obtained on August 18, 2006,
indicate that the NH is in the process of obtaining such a nunc pro tunc judgment
of dissolution of his marriage to the claimant. The NH indicated that he would provide
SSA with a copy of any such order as soon as possible.
POMS GN 00305.170(B)(3) further directs that in any case where "there is a question as to whether the
divorce is invalid or ineffective," an opinion from the Regional Chief Counsel should
be sought. This appears to be an issue of first impression in our region. In 1981,
the Regional Chief Counsel in Region VII issued an opinion stating that a couple who
could not produce a divorce decree from Virginia was still married when the NH died
in Michigan. Memorandum from OCG Region VII, Applicability of Estoppel to Deny Validity
of Divorce -- Michigan and Virginia (August 26, 1981). That opinion cautioned that,
if the issue was a "technical defect" in the parties' divorce, a different question
would have been presented. This matter presents a technical defect. In fact, the court
clerk told SSA that the parties' were divorced but had not paid the proper fees. The
NH is in the process of correcting this technical defect in the divorce. We further
note that the 1981 opinion was premised on applicable state law. We have not found
California law stating that the parties are not divorced because they failed to pay
fees. It is thus our conclusion that you may treat the divorce as valid for the purposes
of determining the claimant's eligibility for wife's insurance benefits as divorced
Our conclusion is also indirectly supported by California law directing that the validity
of a second marriage is presumed. The presumption may be rebutted, by the individual
seeking to invalidate the second marriage by proving that the first marriage had not
ended in death, divorce or annulment. Vargas v. Superior Court, 88 Cal.Rptr. 281, 283 (1970), citing Cal. Evid. Code §§ 604, 606, 663; see also Cal. Evid. Code § 605. In this case, although the parties are unclear on significant
dates, no one contests the fact that the NH and the claimant were divorced, and no
one contests the validity of the NH's second marriage.
As noted, the parties do not appear to be clear on the relevant dates in this matter.
The claimant has repeatedly stated that she was divorced in the 1990s, varying her
account from 1996 to 1999 yet she was the one who petitioned for dissolution of her
marriage in March 1982. The NH sometimes indicated that he was divorced in 1978 but
also claims that he filed for and was granted a divorce in 1996, and he unwaveringly
claims that he remarried in 1983 believing that he was divorced. There is documentation
of a divorce as early as 1982, and it appears that the claimant received the spousal
and child support she was awarded pursuant to the 1982 proceedings. Thus, notwithstanding
the court's 1998 judgment of dissolution, it appears that the parties could seek to
have the nunc pro tunc judgment relate back to 1982. The court may enter judgment
nunc pro tunc "even though the judgment may have been previously entered, where through
mistake, negligence, or inadvertence the judgment was not entered as soon as it could
have been entered under the law if applied for." Cal Fam. Code § 2346(c). Indeed,
although it is not directly at issue here, having the dissolution apply to 1982 appears
to be necessary for the NH to avoid issues regarding the validity of his current marriage.
Since the NH and claimant were married in 1964, i.e., more than ten years before their
divorce, it is immaterial to the claimant's application for divorced spouse's benefits
whether she was divorced in 1982 or 1998.
The parties' divorce was granted but not recorded due to the failure to pay fees.
The NH is in the process of obtaining a nunc pro tunc order granting the divorce retroactively.
In the meantime, you may treat the divorce as valid for the purposes of the claimant's
eligibility for wife's insurance benefits as divorced spouse.