TN 1 (09-07)
PR 06205.021 Louisiana
A. PR 07-100 Louisiana State Law Effective Date of Divorce (NH Jimmie O. D~, SSN ~) - REPLY
DATE: March 2, 2007
A Louisiana divorce is final on the date the judge signs the decree, not when the judge orally renders the judgment.
This memorandum is in response to your request for an opinion on whether a divorce is considered final under Louisiana law on the date the judge signs the decree or on a retroactive date cited in the decree. In our opinion, a Louisiana divorce is final on the date the judge signs the decree.
As we understand the relevant facts, Jimmie O. D~, the number holder, married Jeanne Sweet D~ on March 23, 1957. Jimmie died on January 4, 1983, while domiciled in Louisiana. At the time of his death, Jimmie was married to Jeanne. On March 10, 1987, Jeanne married Kenneth B~. In December 2004, Jeanne filed an application for wife's benefits on Kenneth's record, where she indicated that she was separated from Kenneth and a divorce was pending. Jeanne began receiving wife's benefits on Kenneth's record in January 2005. On October 31, 2005, a Louisiana judge signed a divorce decree that stated as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment herein in favor of JEANNE D. B~ and against KENNETH C. B~, granting unto JEANNE D. B~ a final divorce, forever dissolving the bonds of matrimony that heretofore existed between the parties and terminating the community of acquets_1 and gains between the parties retroactive to the date of separation[,] November 16, 2004.
On October 31, 2005, the date the judge signed the divorce decree, Jeanne filed a widow's claim on Jimmie's record. The Social Security Administration (Agency) adjudicated Jeanne's claim and found that she was entitled to widow's benefits as of October 2005, based on the date the Louisiana judge signed the divorce decree._2 You ask whether Jeanne is considered "unmarried" as of the date the judge signed the divorce decree or as of the retroactive date listed on the divorce decree dissolving Jeanne's marriage to Kenneth.
A Louisiana divorce involves two separate events, the dissolution of the marriage and the termination of the property ownerships between the married partners. We will discuss each event separately for the sake of clarity.
The dissolution of the marriage places the parties "in the same situation with respect to each other as if no marriage had ever been contracted between them." See La. Civ. Code Ann. art. 159 Historical and Statutory Notes. Under Louisiana statutes, a marriage terminates upon death or divorce, as well as pursuant to judicial declarations not relevant to the issue here. See La. Civ. Code Ann. art. 101 (West 2006). The statutes further provide that a judge must sign every final judgment. See La. Code Civ Pro. Ann. art. 1911(West 2006). Louisiana case law establishes that a judgment of divorce has no effect until the judge signs it. See Galbraith v. Galbraith, 396 So.2d 1364, 1367-68 (La. App. 1981), citing Farrell v. Farrell, 275 So.2d 489, 491 (La. App. 1973). In both Galbraith and Farrell, Louisiana appellate courts ruled that divorce judgments were not valid as of the date the court orally rendered them; rather, the judgments were valid only as of the date the judge signed them. For example, in Farrell, a Louisiana court considered the validity of a second marriage when the prior divorce judgment had been read and rendered in open court, but the judge did not sign the judgment until two years later, after the date of the second marriage. The court found that the second marriage was invalid because the prior divorce was not effective until the judge signed the divorce judgment. See Farrell, 275 So.2d at 492. In Galbraith, a Louisiana court considered the validity of a second marriage when the judge read and rendered the prior divorce judgment in open court, but he did not sign the judgment until a day later, one day after the date of the second marriage. The court found that the judgment dissolving the prior marriage could have no effect until the judge signed it. See Galbraith, 396 So.2d at 1368. Here, the judge signed the decree that granted the divorce between Jeanne and Kenneth on October 31, 2005. As a result, we consider that Jeanne is "unmarried" effective that date.
The Louisiana matrimonial regime statutes govern the termination of property ownership between married partners. These statutes establish a system of property ownership and management between married persons. See La. Civ. Code Ann. art. 2325 (West 2006). A matrimonial regime may be legal, contractual, or partly legal and partly contractual. See La. Civ. Code Ann. art. 2326 (West 2006). The legal regime is the community of acquets and gains established in the matrimonial regime statutes. La. Civ. Code Ann. art. 2327 (West 2006). Property held by married persons is either community property or separate property, with one minor exception not relevant to the issues of this opinion. La. Civ. Code Ann. art. 2325 (West 2006). Thus, Louisiana statutes also refer to the community of acquets and gains as the community of property regime. Further, if a community property regime exists on the same date a petition for divorce is filed, the judgment for divorce will include the dissolution of the community property regime. See La. Civ. Code Ann. art. 159 Historical and Statutory Notes (West 2006). In Louisiana, "[a] judgment of divorce terminates the community property regime retroactive to the date of filing of the petition in the action in which the judgment of divorce is rendered." See La. Civ. Code Ann. art. 159 (West 2006).
Consistent with Louisiana law, the divorce decree in this case provided for retroactive termination of the community of acquets and gains between Jeanne and Kenneth. In our opinion, the retroactive date listed on the divorce decree pertains to the termination of the matrimonial regime and is not the effective date of the divorce. Thus, the divorce between Jeanne and Kenneth was final on October 31, 2005, the date the judge signed the divorce decree.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel
_1 Acquet. "Civil law. Property acquired by purchase, gift, or any means other than inheritance; profits or gains of property between husband and wife." BLACK'S LAW DICTIONARY 23 (7th ed. 1999).
_2 A claimant is entitled to widow's benefits if she is the insured's widow. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a) (2006). A claimant can meet this relationship requirement if she and the insured were validly married under state law at the time the insured died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The controlling law is the law of the state where the insured had a permanent home when he died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Here, Louisiana law applies because Jimmie died while domiciled in Louisiana.