You asked whether Claimant’s marriage to the number holder (NH) met the Social Security
Act’s (Act) 10-year duration requirement for surviving divorced spouse benefits?
No. Under Colorado law, the effective date of the divorce was May 24, 1982. Since
the marriage occurred on June 10, 1972, Claimant and the NH were not married for 10
years as required by the Act for surviving divorced spouse benefits.
Claimant, Karen, married the NH, Byron, on June 10, 1972, in Minnesota. Claimant petitioned
for dissolution of marriage and, on May 24, 1982, claimant and the NH appeared before
a Colorado District Court having reached a settlement on all issues and asking the
court to approve the settlement. On August 26, 1982, the Colorado district court entered
a decree of dissolution of marriage “nunc pro tunc, May 24, 1982.” Before submitting
the form of order to the court, the attorneys for both Claimant and the NH signed
the document under the heading “APPROVED AS TO FORM.” The parties also submitted to
the court a written Stipulation and Agreement asking the court to enter an order consistent
with the events of May 24, 1982 “as approved by the court.”
The NH died December 7, 2013, domiciled in Florida. On February 4, 2014, Claimant
filed for surviving divorced spouse benefits.
The agency denied Claimant’s application for failure to meet the marriage duration
requirement. Claimant now seeks reconsideration. Her representative, attorney Douglas,
submitted a letter on Claimant’s behalf dated May 13, 2014, in which he contends that
Colorado courts would not strictly enforce the retroactive divorce decree but would
instead apply equitable principles.
In addition to other requirements not at issue here, an individual may be entitled
to widow’s benefits if she is the surviving divorced wife of an individual who was
fully insured. Social Security Act § 202(e)(1), 42 U.S.C. § 402(e)(1). The Act defines
a surviving divorced wife to be “a woman divorced from an individual who has died,
but only if she had been married to the individual for a period of 10 years immediately
before the date the divorce became effective.” Social Security Act § 216(d)(2), 42
U.S.C. § 416(d)(2); 20 C.F.R. § 404.336.
The agency looks to law of the state where the number holder had a permanent home
to determine a claimant’s marital relationship to the number holder. Social Security
Act § 216(h)(1), 42 U.S.C. § 416(h)(1); 20 C.F.R. §§ 404.344, 404.345. For surviving
divorced spouse benefits, the agency considers the marriage under the state law of
the number holder’s domicile state at the time of death. 20 C.F.R. § 404.336(a)(1).
The agency considers state law in determining both the validity and finality of a
divorce. See Program Operations Manual System (POMS) GN 00305.170(A)(1) (“A divorce is valid if it was granted by the court in whose jurisdiction at
least one of the parties was domiciled at the time of the divorce.”), GN 00305.120(B)
(“Apply State law to determine whether a divorce is final.”); see also POMS GN 00305.165, Summaries of State Laws on Divorce and Remarriage.
According to information you provided, the NH’s permanent home was in Florida at the
time of his death. Under Florida law, the validity of a marriage is determined by
the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Here, we have no reason to question
the validity of the Minnesota marriage. However, we must consider how Florida would
view the Colorado divorce in order to determine the duration of marriage. Florida
recognizes divorce judgments obtained in other states as required by the U.S. Constitution,
which provides that a state must give full faith and credit to the judicial proceedings
of another state. See U.S. Const. art. IV, § 1; see also Atwell v. Atwell, 730 So. 2d 858, 860 (Fla. Dist. Ct. App. 1999) (per curiam) (giving full faith and
credit to a nunc pro tunc California divorce even though nunc pro tunc divorces are
not permitted under Florida law). Thus, to determine the effective date of the dissolution,
we must look to Colorado law.
Here, the terms of the dissolution decree appear consistent with Colorado law.  See POMS GN 00305.170(A)(1) (instructing to assume the validity of a divorce unless there
is a basis to doubt its validity). Under Colorado law, courts are permitted to enter
orders nunc pro tunc, “or now for then”; such orders “are normally for the purpose
of correcting an omission from the court records and are deemed to have retroactive
effect.” In re Estate of Becker, 32 P.3d 557, 559 (Colo. Ct. App. 2000) (citing Perdew v. Perdew, 64 P.2d 602 (Colo. 1936)), aff’d on other grounds sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002). Neither Colorado case law nor the Colorado Uniform Dissolution
of Marriage Act, see 14 Colo. Rev. Stat. § 14-10-101 to 133, discuss when it is appropriate to dissolve
marriages nunc pro tunc.  However, a review of Colorado case law shows that Colorado courts routinely enter
dissolution decrees effective nunc pro tunc and this practice is accepted without
comment by reviewing courts. See, e.g., In re Marriage of Leverett, 318 P.3d 31, 32 (Colo. Ct. App. 2012) (order nunc pro tunc to the date of the hearing);
see also In re Marriage of Schelp, 228 P.3d 151, 154 (Colo. 2010); In re Marriage of Powell, 220 P.3d 952, 954 (Colo. Ct. App. 2009).
As the Colorado Court of Appeals has noted, “nunc pro tunc orders have been regularly enforced in Colorado.” In re Estate of Becker, 32 P.3d at 559 (citing In re Marriage of Rose, 574 P.2d 112 (Colo. Ct. App. 1977), where a nunc pro tunc decree of dissolution
of marriage served to deprive the surviving wife of a surviving spouse share of a
husband’s estate).  Because nunc pro tunc orders are “deemed to have retroactive effect,” May 24, 1982
is the effective date of the dissolution between Claimant and the NH under Colorado
law. In re Estate of B~, 32 P.3d at 559; see also In re Marriage of L~, 89 P.3d 455, 459 (Colo. Ct. App. 2009) (relying on Estate of Becker and recognizing that “the retroactive dates for the nunc pro tunc orders in [prior
Colorado precedent] corresponded to dates on which events dispositive to the dissolution
rights actually occurred in court”). Moreover, Claimant either agreed to the nunc
pro tunc effective date of May 24, 1982, or at least had opportunity for advance notice
of that date on the decree since her divorce attorney approved the document as to
form before it was submitted to the court. She also personally signed a Stipulation
and Agreement indicating that it served as written memorialization of the agreement
approved by the court on May 24, 1982.
We recognize that the agency is not always required to honor state court orders.  In this case, however, because the nunc pro tunc order is consistent with Colorado
state law, and presents no other basis for questioning its terms or validity, the
agency may honor it. Accordingly, Claimant’s marriage to the NH does not meet the
10-year duration requirement for divorced wife benefits. 
Florida, the NH’s domicile state, would give full faith and credit to Colorado law
in determining the effective date of a Colorado dissolution decree. Colorado law presumes
that nunc pro tunc orders have retroactive effect. The effective date of Claimant’s
divorce is, therefore, May 24, 1982. Thus, Claimant was not married to the NH for
10 years, as required by the Act for entitlement to divorced spouse benefits.
John Jay Lee
Regional Chief Counsel Region VIII
Assistant Regional Counsel