PR 06205.016 Illinois

A. PR 84-033 Robert H. K~, DWE, ~; Edith K~ Faye K~, Rhonda K~, Ronald K~, Lori K~, Claimants -- Final Divorce

DATE: August 13, 1984

1. SYLLABUS

DIVORCE -- EFFECTIVE DATE -- ILLINOIS

Where a ceremonial marriage took place at a time between the oral granting Of the divorce of one of the parties and the date of the signing of the decree, that marriage is invalid at its inception and could not be validated under the provisions of Illinois law prior to October l, 1977. A subsequent marriage of one of the parties therefore would be valid without the need for divorce. A party to the purported marriage however could claim the status of a putative spouse on the basis that she had a "good faith belief" that her prior divorce was valid effective when pronounced orally and that she was therefore validly married to the second person, where she continued to maintain this belief subsequent to the effective date of the applicable statute, October l, 1977. (K~, Robert H., ~--RAV (D~), to ARC, Programs, 08/13/84.)

LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- ILLINOIS

The legitimacy of children is not dependent upon "good faith belief" of the parties to the marriage nor is there a cohabitation requirement considered in determining legitimacy. The presumption of legitimacy provision applies and in a case where the factual evidence of paternity or lack thereof is in total conflict and inconclusive the presumption is not rebutted. (K~, Robert H., ~-- RAV (D~), to ARC, Programs, 08/13/84).

2. OPINION

This responds to your request for assistance in determining the status of Edith L. K~ and Faye H. K~ as the widows of Robert H. K~. You have also asked whether Lori, Ronald, and Rhonda K~ are entitled to benefits as the children of Robert H. K~. We conclude, for the reasons discussed below, that: (1) Edith K~ is the "putative spouse" of the wage earner under Illinois law; (2) Faye K~ is the legal widow of the wage earner; and (3) Lori, Ronald, and Rhonda K~ are each entitled to benefits as the children of Robert H. K~.

Facts

The relevant facts may be briefly summarized: Robert H. K~, the wage earner, married Edith L~ (one of the claimants in this case) on December 6, 1959 in Mt. Vernon, Illinois. The wage earner's previous two marriages had ended in death and divorce, respectively. Edith had previously been married to Joseph S~ . A Jefferson County circuit court orally granted Edith and S~ a divorce at a September 24, 1959 hearing. The parties' attorneys subsequently submitted a prepared decree for the court's approval.

According to a December 23, 1959 letter from S~'s attorney to his client, "some time elapsed [after the September 24, 1959 hearing] before it [the decree] was presented to the court." The decree was signed but not dated by the judge, and was filed on December 8, 1959, two days after Edith's marriage to the wage earner.

The wage earner and Edith lived in Mt. Vernon until 1964, when they moved to St. Charles. Sometime after 1964, the parties separated. The record contains several statements of Edith K~ in addition to statements of Robert E. K~ (the wage earner's son by his first marriage) and Mike S~ (Edith's son by her previous marriage). These statements substantially conflict with one another concerning the date of the parties' separation and their subsequent contacts. According to these statements the parties sepa- anywhere from a "sporadic" to "frequent" basis until 1974. During this period Edith had three children: Lori (born December 1, 1965) and Ronald and Rhonda (both born July 5, 1969).

The wage earner filed separate applications for retirement and disability benefits in 1972. On each application he indicated that he was married but separated from Edith L~ K~. He listed no children. The wage earner was awarded retirement benefits. At no time prior to the wage earner's death in 1982 did Edith apply for benefits on behalf of Lori, Ronald, and Rhonda based on the wage earner's record.

The wage earner married Faye H~ (one of the claimants in this case) on July 7, 1977. A search of divorce records between 1966 and 1977 in all counties where the wage earner resided produced no evidence of a divorce between the wage earner and Edith. 1/ Edith states that she never divorced the wage earner, was never told by the wage earner that he had divorced her, and was never served with a divorce judgment. As noted above, the wage earner stated on applications for retirement and disability benefits in 1972 that he was then married to Edith. However, when Faye applied for wife's benefits in 1978, the wage earner did not list his marriage to Edith on the husband's certification form. Edith states that she was aware of the wage earner's marriage to Faye.

The wage earner was hospitalized in 1982, and then entered a nursing home where he died on August 18, 1982 domiciled in Illinois. A newspaper obituary did not mention Faye, but instead listed Edith as the wage earner's surviving wife. The obituary listed the wage earner's children by his first two marriages, but did not list Lori, Rhonda, and Ronald K~. The information contained in the obituary was apparently supplied by the wage earner's children by his first marriage, who assumed complete control over the wage earner's affairs when he entered the nursing home. Faye indicates that she did not know that the wage earner had died until she read the obituary. Moreover, the funeral director's statement indicated that Edith was the wage earner's surviving wife.

Discussion

The issues in this case are (1) whether Edith K~ and/or Faye K~ qualify as the legal widow or the putative spouse, under Illinois law, of the wage earner, and (2) whether Lori, Rhonda, and Ronald K~ are entitled to benefits as the children of the wage earner.

1. Edith K~ and Faye K~ - The validity of both Edith's and Faye's marriages to the wage earner depends on the effective date of Edith's divorce from Joseph S~. If Edith's divorce from S~ was not effec- prior to her December 6, 1959 marriage to the wage earner then the tter marriage is invalid under Ill. Rev. Stat. ch.40 § 212(a) unless it was subsequently validated pursuant to § 212(b). If Edith's marriage to the wage earner was neither valid from its inception nor subsequently validated, then Edith is not the legal widow of the wage earner and Faye is the legal widow. Edith could still be a "putative spouse" under Ill. Rev. Stat. ch.40 § 305 and therefore be a "widow" under Section 216(h)(1)(A) of the Social Security Act. 2/ If, on the other hand, Edith's marriage to the, wage earner was either valid-from its inception or was subsequently validated, then Edith would be the wage earner's legal widow. In that case, the presumption of the validity of the latter of two or more conflicting marriages would be rebutted by the absence of any evidence of a divorce between the wage earner and Edith. Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971). Faye would not be the legal widow of the wage earner but could still qualify as either the "putative spouse" of the wage earner under Ill. Rev. Stat. ch.40 § 305 or a "deemed widow" under Section 216(h)(1)(B) of the Social Security Act. 3/ Based on the evidence before us, we find that 1) Edith's divorce from Joseph S~ did not become effective until December 8, 1959; 2) Edith's December 6, 1959 marriage to the wage earner was not valid nor did the marriage subsequently become validated under Ill. Rev. Stat. ch.40 § 212; 3) Edith qualifies as the "putative spouse" of the wage earner under Illinois law; and 4) Faye is the legal widow of the wage earner.

First, we find that Edith's divorce from S~ was not effective until December 7, 1959 at the earliest. In Russell H~, ~, RA V (D~) to Reg. Comm. SSA 6/19/78, we determined that a divorce becomes effective in Illinois once a written decree is signed by the judge although the decree in that case was not filed until two weeks after the judge signed it. We based this conclusion on our finding that the filing of a judgment is considered in Illinois to be merely a ministerial act performed by the clerk. In re Estate of Young, 112 N.E.2d 113, 117 (Ill. 1953). We also stated in H~ that an oral' pronouncement of divorce made before the signing of a divorce decree has no effect. Jackman v. North, 75 N.E.2d 324 (1947); Pope v. Pope, 299 N.E.2d 161 (Ill. App. 1973); Norwood v. Norwood, 77 N.E.2d 552 (Ill. App. 1948); Richmond v. Richmond, 61N.E.2d 573 (Ill. App. 1945). 4/ This rule has also been applied in cases decided subsequent to the H~ opinion. Heyman v. Heyman, 548 F. Supp. 1041, 1044 (N.D. Ill. 1982) (under Illinois law, a divorce is not effective until' written decree is approved by the judge); In re Marriage of Ayers, 402 N.E.2d 401, 403 (Ill. App. 1980). Thus, the oral judgment of divorce between Edith and S~ rendered at the September 24, 1959 proceedings had no effect. The signed divorce decree was filed by the clerk on December 8, 1959. While the divorce was actually effective when the decree was signed rather than when it was filed, the decree itself is not dated nor is there any extrinsic evidence to indicate the date on which the judge signed the decree. We have found no Illinois cases indicating when an undated decree is considered to have been signed.. In the normal course of judicial proceedings, however, a judgment is filed either on the day the judge signs it or on the following day. Since we presume the regularity of administrative procedures in the absence of evidence to the contrary, we conclude here that the decree was signed, and was therefore effective, either on December 8, 1959 (a Tuesday), the day it was filed, or on December 7, 1959.

Second, because Edith's marriage to S~ was undissolved at the time of her December 6, 1959 marriage to the wage earner, the latter marriage was invalid under the former Marriage Act (Ill. Rev. Stat. ch.89 § 1 (1975)) and its predecessors. Prior to 1977, the subsequent dissolution of a prior marriage by death or divorce did not validate a bigamous marriage in the absence of resolemnization of that marriage. Schmisseur v. Beattie, 35 N.E. 525 (Ill. 1893); see also Historical and Practice Notes, Ill. Rev. Stat. ch.40 § 212 (1980). However, under paragraph 212(b) of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Stat. ch.40 § 101 et seq,, a bigamous marriage becomes valid when the prior undissolved marriage is ended by death or divorce and the parties to the second marriage cohabit after removal of the impediment. In Ambers G~ , ~~ RA V (A~) to Director, IPBV, 12/11/80, we stated that paragraph 212 would be applied only in those cases where the wage earner died on or after October 1, 1977, the effective date of the Marriage and Dissolution of Marriage Act. In the present case, the wage earner died on August 18, 1982, and the wage earner and Edith cohabited following the removal of the impediment to their marriage. However, we have also stated that based on case law and the legislative history of paragraph 212, that provision does not validate a marriage contracted prior to October 1, 1977 where the parties no longer cohabited subsequent to that date. Marvin B~ , ~ , RA V (D~) to Director, IPB, 11/29/83; Morris B~ , ~, RA V (D~) to Director, IPB, 7/19/82. Although it is not clear precisely when Edith and the wage earner separated, the evidence indicates that they separated no later than 1968. Thus, paragraph 212(b) does not validate their marriage.

Third, we think that Edith does qualify as the "putative spouse" of the wage earner under paragraph 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977. Under that provision, a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. In the G~ opinion, we stated that paragraph 305, like paragraph 212(b), was inaptable in the cases of wage earners dying prior to October 1, 1977. However, in the B~ and Bu~ opinions we stated that unlike paragraph 212(b), paragraph-305 validates a pre-October 1, 1977 marriage even though the parties did not cohabit subsequent to that date, so long as the claiming party maintained a good faith belief in the validity of the marriage subsequent to October 1, 1977. Br~, p. 6; Bu~, note 3. We have also stated that paragraph 305 does not require any particular length of cohabitation, and that separation of the parties does not itself terminate putative spouse status, assuming that the separation is for reasons other than knowledge of the legal invalidity of the marriage. B~, p. 6. In the present case, Edith could have reasonably believed that her marriage to S~ had been dissolved by the oral pronouncement of divorce on September 24, 1959. Thus, Edith probably believed that she was free to marry the wage earner on December 6, 1959. Moreover, Edith's later knowledge of the wage earner's 1977 marriage to Faye did not affect her good faith belief in the validity of her "marriage" to the wage earner, since Edith had no reason to believe that her own "marriage" had been invalid. Edith could reasonably assume that it was the wage earner's marriage to Faye that was invalid. Therefore, Edith likely maintained her good faith belief until the wage earner's death. We conclude that Edith is the "putative spouse" of the wage earner under Illinois law. 5_/

Fourth, since Edith was not validly married to the wage earner, nor was her marriage subsequently validated, Faye was validly married to the wage earner and is his legal widow. Faye previously applied for, and was awarded, widow's benefits. However, these benefits may now be decreased based on the entitlement of Edith and her children.

2. Lori, Rhonda, and Ronald K~ - You have asked whether the children of a "putative marriage" under § 305 are presumed legitimate. Such children are considered legitimate under Illinois law, albeit pursuant to Ill. Rev. Stat. ch.40 §212(c) rather than § 305. The former section provides that "children born or adopted of a prohibited or common law marriage are legitimate." On the other hand, § 305 merely confers a certain status on a "spouse" to a prohibited marriage. Moreover, § 212(c) does not require that one of the "spouses" enter into a marriage in "good faith" in order for the children of that marriage to be considered legitimate. Furthermore, § 212(c) does not require that the parties to a prohibited marriage have cohabited in order for the children of that marriage to be considered legitimate.

Section 216(h)(2)(B) of the Social Security Act also enables the child of a prohibited marriage to qualify for child's benefits without reference to state law. That section provides that the son or daughter of an insured individual is eligible for benefits if the insured individual and the child's other parent went through a ceremony that would have resulted in a valid marriage but for the existence of a prior undissolved marriage or a defect in the procedure followed in connection with the purported marriage. Unlike the "deemed widow" provisions of Section 216(h)(1)(B), the "deemed child" provisions of Section 216(h)(1)(A) do not require the existence of good faith or a period of cohabitation in order for the child of the prohibited marriage to be eligible for benefits. However, Section 216(h)(2)(B) does require satisfactory evidence that the claimant is the biological child of the wage earner. See 20 C.F.R. §404.355(b); POMS GN 00306.150.

In the present case, three children were born during the "prohibited" marriage of the wage earner and Edith K~ - Lori (born December 1, 1965), Ronald (born July 5, 1969), and Rhonda (also born July 5, 1969). Lori K~ birth certificate lists a Robert K~ (no middle initial), age 55, as the father. The wage earner was born in 1910. Such evidence satisfactorily establishes the paternity of the wage earner with respect to Lori for purposes of Section 216(h)(2)(B) of the Social Security Act. See POMS GN 00306.150. We do not think that the absence of a middle initial on the birth certificate raises any significant inference that the father of Lori is not the wage earner but Robert E. K~, the wage earner's son by his first marriage. Although the record presents considerable conflicting evidence regarding the relationships of the wage earner and Edith K~ on the one hand, and Robert E. K~ and Edith on the other hand, during late 1968 when Rhonda and Ronald K~ were conceived, there is substantially less dispute regarding the period in early 1965 when Lori was conceived. We conclude that Lori is entitled to benefits under Section 216(h)(2)(B) of the Social Security Act.

The paternity issue with respect to Ronald and Rhonda K~ is a much more difficult matter. Simply put, the evidence is in hopeless conflict regarding when the wage earner and Edith separated, and regarding the extent of their relationship during the period in late 1968 when Rhonda and Ronald were conceived. Similarly, the evidence is in hopeless conflict regarding the extent of Edith's relationship with Robert E. K~ during this period. We do not think that such evidence satisfactorily establishes the paternity of the wage earner with respect to Ronald and Rhonda K~ for purposes of Section 216(h)(2)(B).

However, Ill. Rev. Stat. ch.40 § 212(c) accords the same presumption of legitimacy to a child born during a prohibited marriage as is accorded to a child born during a valid marriage. Valle v. Valle, 447 N.E.2d 945, 949 (Ill. App. 1983). See also Cardenas v. Cardenas, 140 N.E.2d 377 (Ill. App. 1957). We have repeatedly stated in prior opinions that under Illinois law, this presumption applies even though the spouses were separated during the period of possible conception and may be rebutted only by "clear, convincing, and irrefragable proof" that the husband had no access to the mother during this period. William M~, ~, RA V (D~) to ARC-Programs, 11/10/83; A1 S~ , ~~ ,~RA v (born) to ARC-Programs, 7/28/80. We think that under § 212(c) the same evidentiary standards apply to children born during a prohibited marriage. 6_/

We explained in the M~ and S~ opinions that although the standard for rebutting the presumption of legitimacy appears to be particularly onerous, the Illinois courts have in practice allowed credible proof of nonaccess to overcome the presumption. The courts have generally found that the presumption of legitimacy is rebutted where there is: (1) credible testimony by both the husband and wife of nonaccess to each other during the period of conception, (2) evidence of a relationship between the mother and putative father during the period of conception, and (3) other persuasive evidence that corroborates the testimony of the mother. In the present case, we think the evidence is clearly insufficient to rebut the presumption of legitimacy with respect to Lori K~. With respect to Ronald and Rhonda K~, we agree that considerable doubt exists that the wage earner was their father. Edith K~ s' numerous statements are in considerable conflict with respect to the extent of her relationships both with the wage earner and with Robert E. K~, the wage earner's son, during the period of possible conception in late lg68. The statements of Robert E. K~ and Mike S~, Edith's son by her prior marriage to Joseph S~, fail to clarify the issue of access by the wage earner and Robert E. K~ to Edith during the period of possible conception. The wage earner himself failed to acknowledge any of the three children in his applications for retirement and disability benefits in 1972. Some evidence submitted in connection with the wage earner's disability application suggests that he had prostate problems in late 1968 (possibly resulting in surgery in early 1969). Especially troubling is the fact that although the birth certificates of Ronald and Rhonda K~ do not list the name of a father, they originally listed the father's age as 37 before Edith altered the listed age to 57.

Although the actual paternity of Ronald and Rhonda K~ is an open question, we are unable to conclude that the presumption of legitimacy conferred by Illinois law is, on the basis of the available record, rebutted by "clear, convincing, and irrefragable proof" to the contrary, even given the somewhat relaxed application of this standard in practice by the Illinois courts. We acknowledge that absent the presumption, the evidence would be clearly insufficient to establish that the wage earner was the father of Ronald and Rhonda K~ . But the issue here is not whether the wage earner was the father, but whether the available evidence is sufficient to rebut the presumption established under Illinois law that the wage earner was the father. The evidentiary standard for rebutting the presumption, while not as onerous as it might initially appear, nevertheless remains a heavy one. We conclude that that standard has not been met here.

In summary, we conclude that:

(1) Faye H~ is entitled to widow's benefits as the legal widow of the wage earner under Illinois law.

(2) Edith L~ is the "putative" widow of the wage earner under Illinois law and is entitled to mother's insurance benefits.

(3) Lori, Ronald, and Rhonda K~ are entitled to benefits as the children of the wage earner.

1/ Your memorandum indicates that no search was conducted for the period from 1978 until the wage earner's death on August 18, 1982. Inasmuch as we conclude below that Edith was not validly married to the wage earner, it is unnecessary to determine whether Edith and the wage earner obtained a divorce after 1977.

2/Edith cannot have "deemed widow" status under Section 216(h)(1)(B) of the Act since she was not living with the wage earner at the time of his death.

3/ Faye indicated in a statement that the wage earner had told her about--his first marriage but had not mentioned any other marriage. When the wage earner entered a nursing home in 1982, his children by his first marriage told Faye that the wage earner had been married to Edith. Until that point, Faye believed that Edith was married to the wage earner's son by his first marriage, Robert E. K~ , with whom Edith had been living since 1970. However, the record fails to show that Faye knew that the wage earner's "marriage" to Edith had not ended in divorce. Thus, Faye likely maintained a good faith belief in the validity of her own marriage to the wage earner until his death. Faye therefore qualifies as a "putative spouse" under Ill. Rev. Stat. ch.40 § 305. We also think that Faye would be a "deemed widow" under Section 216 (h)(1)(B) of the Social Security Act, which requires only that a claimant enter into a marriage in good faith. Faye was "living with" the wage earner at the time of his death although he was required to then reside in a nursing home. However, in view of the fact that we find that Faye was the legal widow of the wage earner it is unnecessary to conclusively determine whether Faye is a "putative spouse" or "deemed widow."

4/ The reason for this rule is that divorce proceedings are equitable in nature. Traditionally the oral pronouncements of a chancellor were not binding unless and until embodied in a written decree approved by him. Anastaplo v. Radford, 153 N.E.2d 37 (Ill. 1958).

5/ Because Edith was born in 1932, she is not yet eligible for widow's benefits under Section 202(c) of the Social Security Act. However, we conclude below that Lori, Rhonda, and Ronald K~ are entitled to benefits as the children of the wage earner. Therefore, Edith is entitled to mother's benefits under Section 202(g) of the Act.

6/ We believe that § 212(c) may be applied in all cases where the wage earner died on or after October 1, 1977. As discussed above, we have determined in prior opinions that the marriage validation provisions of § 212(b) apply only where the wage earner died on or after October 1, 1977 and the parties cohabited on or after that date. We have also determined that the putative spouse provisions of § 305 apply only where the wage earner died on or after October 1, 1977 and the claiming spouse maintained a good faith belief in the validity of the marriage subsequent to that date. However, the "deemed legitimacy" provisions of § 212(c) do not require good faith on the part of either party to a prohibited marriage or that the child have been born during the cohabitation of the parties (as required under Ill. Rev. Stat. ch.89 § 17a prior to October 1, 1977). We think that consistent with our opinion in Ambers G~ , ~, RA V (A~) to Director, IPBV, 12/11/80, in which we limited the application of the 1977 marriage statute to claims where the wage earner died on or after October 1, 1977, the "deemed legitimacy" provisions of § 212(c) may be applied in all cases where the wage earner died on or after October 1, 1977, regardless of when the prohibited marriage was contracted or when the child was born.

We also note that on May 22, 1984 SSA amended 20 C.F.R. §404.354(b) to clarify that the relationship of an applicant for child's benefits to an insured individual is determined by the state laws in effect at the time the insured individual died. 49 Fed. Reg. 21,512.


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PR 06205.016 - Illinois - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008