TN 3 (05-10)

PR 06205.033 New Jersey

A. PR 10-091 Divorce- B~, George (Duration of Marriage) - NJ Opinion

DATE: April 20, 2010

1. SYLLABUS

In a case of a husband and wife who married on May 7, 1971, subsequently filed for divorce, and had a final judgment of divorce ordered on and adjudged by a New Jersey court on May 4, 1981, but not filed by the court until May 8, 1981 the ten-year duration of marriage requirement for entitlement to Divorced Spouse's Benefits was met since the divorce decree was not considered final until it was filed on May 8, 1981..

2. OPINION

QUESTION PRESENTED

Whether the ten-year duration of marriage requirement for entitlement to Divorced Spouse's Benefits was met in the case of a husband and wife who married on May 7, 1971, subsequently filed for divorce, and had a final judgment of divorce ordered on and adjudged by the Camden County Superior Court of New Jersey on May 4, 1981, but not filed by the court until May 8, 1981.

OPINION

The ten-year duration of marriage requirement for entitlement to Divorced Spouse's Benefits was met in the case of George A. B~, Jr. and Marie P~ a/k/a Marie B~, who married on May 7, 1971, subsequently filed for divorce, and had a final judgment of divorce ordered on and adjudged by the Camden County Superior Court of New Jersey on May 4, 1981, but not filed by the court until May 8, 1981, since the divorce decree was not considered final until it was filed on May 8, 1981. Mr. B~ and Ms. P~ were married for ten years and one day, and, Ms. P~, therefore, satisfied the ten-year duration of marriage requirement for entitlement to Divorced Spouse's Benefits.

BACKGROUND

George A. B~, Jr. and Marie P~ were married on May 7, 1971, in Brooklawn, New Jersey. Ms. P~ filed for divorce on April 28, 1981 in the Superior Court of New Jersey, Camden County. The court heard and considered the complaint for divorce, and issued a Final Judgment of Divorce on May 4, 1981, stating, "It is on this 4 day of May, 1981 ORDERED and ADJUDGED that, pursuant to the statute in such case made and provided that the marriage between the parties is dissolved." The judgment was stamped "ORIGINAL FILED 5-8-81 W. Lewis B. C~." Marie P~ filed for Divorced Spouse's Benefits with the Social Security Administration on June 15, 2009.

ANALYSIS

If a beneficiary is divorced, his or her ex-spouse can receive Divorced Spouse's Benefits if their marriage lasted at least ten years. 20 C.F.R. § 404.331(a)(2); POMS RS 00202.005(A). This requirement is met if the divorce became final on or after the tenth anniversary of the marriage. POMS RS 00202.005(A). Mr. B~ and Ms. P~ were married on May 7, 1971. Thus, in order for Ms. P~ to be entitled to Divorced Spouse's Benefits, she would have to have been married to Mr. B~ until at least May 7, 1981. Ms. P~ filed for divorce on April 28, 1981. Although the Camden County Superior Court of New Jersey issued a Final Judgment of Divorce on May 4, 1981, stating, "It is on this 4 day of May, 1981 ORDERED and ADJUDGED that, pursuant to the statute in such case made and provided that the marriage between the parties is dissolved," the judgment was not filed by the Clerk of Court until May 8, 1981.

Married on May 7, 1971, Mr. B~ and Ms. P~ were married for ten years and one day since their divorce judgment was not entered until May 8, 1981. A judgment is considered "entered" upon its inclusion in the public records. GN00305.160(C). The usual procedure in a divorce action is for the court to announce its judgment, then for the counsel to draft a decree and file it with the clerk who has the authority to "enter" the judgment. Id. The decree is ordinarily dated as of the time of the actual filing with the clerk. Id. A final decree of divorce is effective and restores the parties to the status of single persons at the time it is entered unless the law of the State provides for it to be effective upon the rendering of the judgment, with the entry merely a routine clerical procedure following judgment. Id. The law of New Jersey is consistent with the practice of considering judgments "entered" upon the formal recording of the conclusion reached by the court. Rule 4:47 of the Rules Governing Civil Practice of the State of New Jersey instructs that the clerk of court enters the judgment in the Civil Docket, and further states: "The notation of a judgment in the Civil Docket constitutes the entry of judgment, and the judgment shall not take effect before such entry unless the court in the judgment shall, for reasons specified therein, direct that it take effect from the time it is signed . . . ." See also, 2 N.J. Prac. Series R 4:47 (2009).

Accordingly, in New Jersey, unless otherwise specified in the court's decision, a final divorce decree is effective and dissolves the marriage at the time it is entered. See GN00305.165 (emphasis added). A review of New Jersey case law reveals the procedural distinction between when a judgment is rendered and when it is entered. In Jovic v. Jovic, a New Jersey divorce matter, the court described the procedural history of the case by stating: "A decision was rendered on December 18, 2007 . . . and a judgment of divorce was entered on December 19, 2007." Jovic v. Jovic, 2009 WL 1118764 (N.J.Super.A.D.) (April 28, 2009). Similarly, in Seikunas v. Seikunas, another New Jersey divorce case, the court noted that "Although the parties have characterized the judgment entered on December 24, 2003 as a 'supplemental dual final judgment of divorce,' no judgment had actually been entered prior to that date, although Judge H~ granted the divorce on the record on August 21, 2003." Seikunas v. Seikunas, 2005 WL 3739667 (N.J.Supp.A.D.) (Feb. 7, 2006). And finally, in Beck v. Beck, a case involving support obligations following a divorce, the court noted that until a court order is entered pursuant to the requirements in R. 4:47, the time for appeal or motion for reconsideration of the judge's decision does not begin to run. Beck v. Beck, 570 A.2d 1273, 1276 (N.J. Super. A.D. 1990).

Thus, since Mr. B~'s and Ms. P~'s final divorce judgment was not filed by the clerk until May 8, 1981, it was not considered entered until that date, and did not take effect until that date. Accordingly, Mr. B~ and Ms. P~ were married for ten years and one day, satisfying the marriage duration requirement for Ms. P~'s entitlement to Divorced Spouse's Benefits. 20 C.F.R. § 404.331(a)(2); POMS RS 00202.005(A).

CONCLUSION

Since Mr. B~ and Ms. P~'s divorce was entered and effective on May 8, 1981, they were married for ten years and one day and, accordingly, Ms. P~ met the ten-year marriage duration requirement for entitlement to Divorced Spouse's Benefits.

Stephen P. C~
Regional Chief Counsel
By: ___________________

Karla J. G~

Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1506205033
PR 06205.033 - New Jersey - 05/25/2010
Batch run: 05/25/2010
Rev:05/25/2010