This is in reference to your memorandum requesting our assistance in determining whether
a default divorce decree obtained by Dudley E. E~ ('the wage earner') was properly
vacated. This determination depends upon whether the state court had jurisdiction
to consider the motion to vacate and, if so, whether the court properly exercised
its discretion in granting the motion to vacate.
The facts are as follows.' the wage earner and Neva E~ ('the claimant") were ceremonially
married on July 17, 1939. Some time later, the wage earner filed a divorce complaint
against the claimant. The wage earner's complaint included allegations that he and
the claimant were married on July 14, 1928, that there were no children of the marriage,
that the claimant had deserted him to live in Utah, and that the claimant had knowledge
of the divorce complaint either through public notice or a copy of the summons. On
January 4, 1954, the wage earner obtained a default divorce decree.
On January 20, 1987, the claimant filed an affidavit in which she averred that she
was not served with either notice or a copy of the wage earner's complaint for divorce,
that she had never moved from Illinois, that the wage earner knew her address, and
that he often visited both her and their two children. The claimant further averred
that on July 14, 1928, she could not have been married to the wage earner since on
that date she was only five years old. */ The claimant stated that when the wage earner
died on July 10, 1956, she paid all of the wage earner's funeral expenses and attended
his funeral as his widow. The claimant maintained that after the deceased wage earner's
funeral, his brother informed her that the wage earner had obtained a divorce from
her, and that she filed a motion to vacate the divorce decree on or about August 8,
1956. The claimant's attorney never contacted her regarding her motion and, thus,
she thought it had been ruled upon without objection. In fact, her motion was never
ruled upon, a fact which she did not learn until she filed for widow's benefits in
1987, after the death of her attorney. The claimant's 1987 affidavit was supported
by birth certificates, a copy of her marriage license and other relevant documents.
On January 20, 1987, an Illinois court ruled upon the claimant's August 8, 1956 motion
and vacated the wage earner's default divorce decree.
Under Section 216(h)(1)(A) of the Social Security Act, a claimant is the wife or widow
of a fully insured wage earner, if she and the wage earner were validly married when
the wage earner's died, This question is resolved by the laws of the state in which
the wage earner was domiciled at the time of his death. 42 U.S.C. §416(h)(1)(A) (1987).
Illinois law controls since both the wage earner and the claimant were residents of
Illinois when the wage earner died.
Illinois courts may grant a motion to vacate any decree or default judgment, if the
motion is filed within thirty days after the decree or judgment is entered. Ill. Ann.
Star. ch. 110, §2-1301 (S~-H~ 1987). After the thirty day period, an Illinois court
may still entertain a motion to vacate any judgment, if the movant files a petition
for relief from the judgment within two years after its entry. Ill. Ann. ch. 110,
112-1401 (S~-H~1987). The time in which a judgment was fraudulently concealed is excluded
when computing the two year time period. Id. There- fore, it must be determined whether
the Illinois court had jurisdiction in the instant case. For the reasons outlined
below, we conclude that the Illinois court had jurisdiction to grant the applicant's
motion to vacate the deceased wage earner's divorce decree, because the applicant's
motion was filed within the two year statute of limitation.
In the instant case, Neva E~ ("Mrs. E~ ") maintains that the divorce decree obtained
by her deceased husband Dudley E. E~ ("the wage earner") on July 4, 1954, was properly
,vacated. Mrs. E~ further maintains that the divorce decree was both fraudulently
concealed and obtained by her husband through the date of his death and that she timely
filed her motion to vacate the decree on or about August 8, 1956, even though the
court did not rule upon her motion until January 20, 1987.
In addition to the thirty day time limit established with regard to a default decree
(Ill. Ann. Stat. ch. 110, §2-1301 (S~-H~ 1987)), the Illinois Code of Civil Procedure
Civil Practice Act provides:
(a) Relief from final orders and judgments, after 30 days from the entry thereof,
may be had upon petition as provided in this Section...
(b) The petition must be filed in the same proceeding in which the order or judgment
was entered but is not a continuation thereof...
(c) The petition must be filed no later than 2 years after the entry of the order
or judgment. Time during which the person seeking relief is under legal disability
or duress or the ground for relief is fraudulently concealed shall be excluded in
computing the period of 2 years.
Ill. Ann. ch. 110, §2-1401 (S~-H~1987). The petition must be "sup- ported by affidavit
or other appropriate showing as to matters not of record." Id. Two issues are raised when the facts herein are applied to the above-quoted statute:
first, whether Mrs. E~ motion to vacate was filed within the two year statute of limitations;
and second, whether Mrs. E~ affidavit provided a sufficient basis upon which the state
court could have vacated the default divorce decree, in light of the fact that the
wage earner died prior to the court's order.
First, Mrs. E~ motion to vacate was filed within the two year statute of limitations.
While Mrs. E~ admitted that her motion to vacate was filed two years and eight months
after the divorce decree was entered, she sufficiently demonstrated that her deceased
husband had fraudulently concealed the divorce decree during this time. Mrs. E~ never
received notice or a copy of the divorce complaint. Her husband never told her that
he had obtained a divorce, although he frequently visited her and although she nursed
him during his last illness in 1956. Mrs. E~ was not informed of the divorce decree
until her husband's brother told her about it after her husband's funeral in July
Moreover, it should be noted that while there is no evidence why the attorney who
filed Mrs. E~ motion in 1956 did not obtain an order from the court at that time or
in the subsequent thirty years, the facts clearly demonstrate that Mrs. E~ exercised
due diligence in obtaining an order to vacate the divorce decree. Mrs. E~ filed her
motion within days of learning of the default divorce decree and she filed her affidavit
within days of learning that her motion had never been ruled upon. Consequently, Mrs.
E~ successfully demonstrated that her motion of August 8, 1956 was filed within the
two year statute of limitations.
Turning to the second question presented by applying the statute to these facts, it
is clear that Mrs. motion to vacate was properly granted under ch. 110, §2-1401, despite
her husband's death. In Collins v. Collins, 14 Ill.2d 178, 151 N.E.2d 813 (Ill. 1958), the Illinois Supreme Court considered
a motion to vacate a divorce decree based upon the predecessor of ch. 110, §2-1401
(i.e., ch. 110, §72). There, the petitioner and her husband were married on December
23, 1953. On April 23, 1955, the petitioner obtained a divorce decree granting her
a divorce from her husband. However, one year later the petitioner filed a motion
under ch. 110, §72 (i.e., ch. 110, §2-1401) to vacate the decree and to dismiss the
cause. Id. In granting the petitioner's motion to vacate the decree, the Illinois Supreme Court
found that the decree was "in error for reasons apparent upon the face of the record"
and that it should be vacated despite the death of the petitioner's husband. The court's
decision is still good law. See, e.g., Kennedy Construction Co., Inc. v. Industrial Commission, 152 III. App.3d 114, 503 N.E.2d 1169 (Ill. App. 1987') (the court may rule upon
a motion to vacate even though the party who obtained the decree or judgment is deceased
at the time of the motion to vacate), citing Collins v. Collins, 14 Ill.2d 178, 151 N.E.2d 813 (Ill. 1958).
Similarly, the errors in the divorce decree granted to Mrs. deceased husband are apparent
from the face of the decree and provided a sufficient basis upon which to attack the
divorce decree, despite the wage earner's death. Mrs. E~ was never served with a copy
of the divorce complaint, either through publication or by personal service. This
defect alone would have provided sufficient grounds upon which Mrs. could have attacked
the wage earner's default decree. However, it appears that the wage earner's decree
was replete with misrepresentations. The wage earner represented that he had married
the claimant on July 14, 1928, when she was five years old. The wage earner also represented
that there were no children of the marriage when, in fact, there were two children.
The wage earner stated that Mrs. E~ had deserted him and moved to Utah, when he had
twice deserted her, but had at all times known where she and their children lived.
Therefore, Mrs. E~ provided a sufficient basis upon which the Illinois court could
grant her motion to vacate the wage earner's divorce decree.
In reaching the conclusions herein, we are aware of our opinion in John L. J~, A/N
~, RA V (G~) to ARC-Programs (W~) SSA V (8/5/85). However, we have determined that
the facts in J~ are sharply different from the facts herein. Unlike here, the state
court in J~ attempted to vacate a divorce decree that was filed well after the two
year statute of limitations and that was neither fraudulently procured or concealed.
Moreover, in J~ the claimant remarried and, thus, she was estopped from attacking
the validity of the divorce decree, Mrs. E~ never remarried and has at all times believed
that she was validly married to Mr. E~ that she was his widow. Consequently, the two
cases are easily reconciled.
In light of the above answer, you have also asked: "what point in time" does the order
vacating the divorce decree effect? The Judge's order specifically declares that the
divorce decree entered on January 4, 1954 was "set aside and held for naught." This.
language means that the marriage between the wage earner and Mrs. E~ was never terminated.
Accordingly, we feel that the order vacating the deceased wage earner's divorce decree
was properly granted by the Illinois state court, and that the marriage between Mrs.
E~ and the wage earner was terminated only upon the death of the wage earner. Mrs.
E~ is the wage earner's legal widow.
*/ We note that your memorandum stated that the claimant was born on March 12, 1916.
The claimant stated in her affidavit that she was born on March 5, 1923. This conflict
is not easily resolved. Several documents in the file suggest different dates of birth
for the claimant, including her earnings certification which lists March 12, 1923
as her date of birth.
Dudley E~ a fully insured individual, died on July 10, 1956. On February 13, 1987,
Neva E~ filed a formal application for widow's insurance benefits on Mr. E~ record.
Neva E~ was born on March 12, 1916. She established that she and Mr. E~ were ceremonially
married on July 17, 1939. She alleged the marriage was terminated by Mr. E~ death.
The evidence of record shows that Dudley E~ obtained a divorce from Neva E~ on January
4, 1954. Neva E~ had the divorce vacated on January 20, 1987.
After reviewing the evidence of record, we determined Neva E~ was not the legal widow
of Dudley E~ We entitled her to widow's insurance benefits as a surviving divorced
wife of Mr. E~ We established her month of entitlement to widow's insurance benefits
as August 1986 based on a date claim filed of February 13, 1987. We notified Ms. E~
concerning her month of entitlement to widow's insurance benefits on or about May
Neva E~ filed a timely request for reconsideration on June 18, 1987. She alleged she
should have been entitled to widow's insurance benefits effective March 1976, the
month she attained age 60.
We entitled Neva E~ to disability insurance benefits on her own record (SSN ~ ) effective
April 1968 based on an application she filed on August 12, 1968. That application
was an application for all monthly benefits payable to her under Title II of the Social
Security Act. The application of August 12, 1968 was never closed out as a claim for
widow's insurance benefits on the record of Dudley E~ As the application for disability
insurance benefits was "open" at the time Ms. E~ filed her formal application for
widow's insurance benefits, we may use August 12, 1968 as a protective filing date
for her such benefits.
If Neva E~ is a surviving divorced wife of Dudley E~ we can entitle her widow's insurance
benefits effective January 1979. That is the first month the 10 year duration of marriage
requirement replaced the 20 year duration requirement. On the other hand, if she is
Mr. E~ legal widow, we can entitle her to widow's insurance benefits effective March
1976, the month she attained age 60.
The evidence of record indicates that Dudley E~ obtained a divorce from Neva E~ in
Peoria County, Illinois on January 4, 1954. On January 20, 1987, Jackson P. N~, Judge
of the Tenth Judicial Circuit of Illinois (Peoria County) vacated the divorce decree
of January 4, 1954.
What we need to know is whether the divorce decree was properly vacated and, if it
was, when such vacation was effective for the purposes of the Social Security Act.
Please advise whether, in your opinion, the Judge of the Illinois Circuit Court had
the authority to vacate the divorce decree of January4, 1954 on January 20, 1987.
If the Judge of the Illinois Circuit Court had the authority to vacate the divorce
decree when he took action to do so, at what point in time is the vacation order effective
for the purposes of the Social Security Act? Is Neva E~ considered to have been divorced
from Dudley E~ for the purpose of determining her entitlement month to widow's insurance
benefits prior to January 20, 1987?