PR 06210.016 Illinois

A. PR 07- 158 MOS-Illinois: Annulment of Marriage After Entitlement - REPLY Your Reference: S2D5G6 R~, James ~ E.

DATE: June 21, 2007

1. SYLLABUS

Where the Court order was not genuinely contested by parties with opposing interests, SSA is not bound by the decision but should determine independently whether the judgment entered was consistent with prevailing State law. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its determination establishing the marriage and awarding spousal benefits.

2. OPINION

You have asked whether an invalidity-of-marriage judgment entered on May 24, 2006, and relating to the marriage between numberholder, James E. R~, and spouse's benefits recipient, Norma M~ C~, would have any effect on Norma's continued eligibility for spouse's benefits on James's account. As discussed below, we conclude that, under Social Security Ruling (SSR) 83-37c (G~ v. R~), the Agency should not give the judgment for invalidity of marriage dispositive weight, but should independently determine whether the judgment entered was consistent with prevailing state law. We further conclude that, because there is no indication in the judgment or other documents of record that the state court made the required findings necessary for a valid annulment or dissolution of marriage, the judgment was not consistent with prevailing state law. As such, the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.

BACKGROUND

The record contains an apparently official marriage certificate from the Commonwealth of Puerto Rico indicating that, in November 1967, James and Norma were married. You indicated that James and Norma separated some time after the marriage, and that James subsequently married three additional times.

In March 2005, the Agency established the marriage, and awarded spousal benefits to Norma on James's account. James then submitted a signed statement to the Agency denying that he had married Norma, and he asked for an "original signed form to prove that it was not my signature and not me." At some point thereafter, the marriage certificate described above was added to the file.

Some time later, James filed a petition in Illinois State court seeking to have the marriage declared invalid. The petition indicated that James was aware of Norma's award of spousal benefits, and asserted that Norma's "claim" was fraudulent. Based on the petition, the Cook County Circuit Court issued a judgment for invalidity of marriage, finding that "the purported marriage ceremony between the parties on November 2, 1967, in Aguadilla, Puerto Rico," was "null, void, and invalid ab initio." The judgment indicated that Norma was notified of the proceedings by publication, but that, according to James, she lived out of state and her whereabouts were unknown.

DISCUSSION

As you know, to be entitled to spouse benefits, a claimant must be the legal spouse of a numberholder entitled to RIB or DIB. POMS RS 00202.001(A)(1), (C). And, the claimant will be found to be the legal spouse of the numberholder if it is determined that she is validly married to the numberholder under the state law of the numberholder's domicile at the time that the application is filed. POMS RS 00202.001(A)(1). Here, Norma was found to be James's legal spouse and was awarded spouse's benefits.

These benefits stop when the marriage to the numberholder ends by divorce (unless the spouse is entitled to divorced spouse's benefits) or the marriage to the numberholder is annulled. POMS RS 00202.040(A). The validity of the divorce or annulment is assessed by considering the law of the numberholder's domicile at death or at the time the application was filed, which, in this matter, is Illinois. POMS GN 00305.170.

The judgment for invalidity of marriage found that the parties' marriage was null, void, and invalid ab initio. However, because this state court domestic relations order was not genuinely contested by parties with opposing interests (in that Norma did not appear), the Agency must determine whether the order was consistent with prevailing state law. SSR 83-37c (G~ v. R~); POMS PR 04805.025 Michigan (A. PR 07-097) (applying SSR 83-37c to an uncontested annulment judgment); POMS PR 04805.016 Illinois (A. PR 97-004) (applying SSR 83-37c to an apparently uncontested order vacating a divorce decree); P~ v. S~, 898 F.2d 578, 580-81 (7th Cir. 1990) (holding that "the validity of a marriage for purposes of the Social Security Act depends not on the contents of an ex parte [divorce] order by a state trial court, but on what the highest court of the state would do with that order if it were challenged"); see also T~ v. A~, 1998 WL 597643 at **2 (7th Cir.) (recognizing applicability of SSR 83-37c to state court paternity judgment).

Under Illinois law, the grounds for declaring a marriage to be invalid are (1) that a party lacked the capacity to consent to the marriage or was induced to enter the marriage by force, duress, or fraud; (2) that a party lacked the ability to consummate the marriage; (3) that a party aged 16 or 17 years did not have parental or judicial consent; or (4) that the marriage was prohibited (e.g., bigamy). 750 Ill. Comp. Stat. Ann. 5/301 (West 2007). The ground for invalidity must be shown by a preponderance of the evidence, and, in addition, depending on the grounds for the declaration of invalidity, various time limits apply-ranging from 90 days after learning of the ground up to 3 years after the death of the first party to die. 750 Ill. Comp. Stat. Ann. 5/302 (West 2007). Although James asserted in his petition that he never married Norma and thus that her claim was fraudulent, he does not allege that he was fraudulently induced to enter a marriage, which could be a basis for a declaration of invalidity. And, the state court judgment fails to indicate any valid basis for invalidity. Moreover, there is no indication in either the petition or the judgment that the petition was filed within the requisite time limit. Under these circumstances, it is not clear that the state court judgment was consistent with prevailing state law, and thus the Agency is not bound by the state court judgment of invalidity. POMS PR 04805.016 Illinois (A. PR 97-004).

Although we have been unable to locate any definitive law on point, it is possible that the judgment could also operate as a divorce decree for purposes of entitlement to Agency benefits, but, again, only if the judgment and/or other evidence of record showed that the court's decision was consistent with state law. POMS PR 04805.025 Michigan (A. PR 07-097). In Illinois, a judgment for dissolution of marriage requires either a showing of fault, or that the parties have lived apart for more than 2 years, that irreconcilable differences have caused the irretrievable breakdown of the marriage and that efforts at reconciliation have failed or would not be in the best interests of the family. 750 Ill. Comp. Stat. Ann. 5/401(a) (West 2007). But, neither the decree nor any other evidence of record shows that one of these grounds was satisfied. Thus, the Agency also should not accept the state court judgment as a dissolution of marriage.

Because the judgment does not appear to satisfy the prevailing state law requirements for a declaration of invalidity or a dissolution of marriage, the Agency is not bound by the judgment. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its March 2005 determination establishing the marriage and awarding Norma spousal benefits.

CONCLUSION

As discussed above, we conclude that the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.

Donna L. C~
Regional Chief Counsel, Region V
By: ___________
Todd D~
Assistant Regional Counsel

B. PR 89-002 Recognition of Mexican Divorce - Arlene R~ - SSN ~

DATE: January 10, 1989

1. SYLLABUS

Neither party in this case was domiciled in Mexico at the time their Mexican divorce decree was obtained. The Illinois Circuit Court has recognized and enrolled the divorce and this action was consistent with the law of Illinois. Therefore, the divorce granted is valid for purposes of Social Security benefits determinations.

2. OPINION

This memo is in reference to your inquiry as to whether a potential claimant, Arlene R~, is eligible for widow's benefits on the basis of a marriage entered in reliance upon a Mexican divorce from a previous husband. Arlene R~ recently inquired whether she would be eligible for widow's benefits. As of that time she had not filed a claim for Social Security benefits.

The relevant facts appear to be as follows. Arlene and Howard M~ were awarded a Mexican divorce on February 18, 1970. On October 4, 1988, Mrs. ~ filed a Petition to Enroll a "Final Divorce Decree" in the Circuit Court of the 18th Judicial Circuit, DuPage County, Illinois. On October 26, 1988, Howard M~ filed a response to this petition admitting the allegations of Mrs. R~ petition and joining her in her request for enrollment of the divorce degree and that recognition be given the decree under full faith and credit. Subsequently, Arlene married her second husband, Harold R~ (the exact date is not known from the history which accompanied the opinion request). After Harold R~

death, Arlene inquired as to whether she would be eligible for widow's benefits. 1/

For the following reasons, we are of the opinion that the potential claimant was legally divorced from Howard M~ by the Mexican divorce decree despite the fact that neither party was domiciled in Mexico at the time of the decree. Neither party contested the divorce, the Circuit Court in DuPage County determined that the divorce was entitled to full faith and credit, and the Circuit Court issued an order enrolling and registering the divorce in the State of Illinois. The court's actions were in keeping with precedent in the State of Illinois. Arlene R~ is therefore entitled to widow's benefits should she file for them.

Illinois courts will normally give full faith and credit to a divorce decree obtained in another state or country under the doctrine of comity. See Validity of Dominican Republic Divorce Under Illinois Law, RA V (K~) to ARC, 7/14/82 (citing Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949); Zaduendo v. Zalduendo, 45. Ill. App.3d 849, 360 N.E.2d 386 (1977); Skilling v. Skilling, 432 N.E.2d 881 (Ill. App. 1982)). Although Illinois courts will consider the issue of domicile in deciding whether to give full faith and credit to a divorce decree obtained in another state, there is a heavy burden placed on the party attacking the divorce decree to show lack of domicile. Stilwell v. Continental Illinois National Bank, 31 Ill.2d 546, 202 N.E.2d 477 (1964); Fink v. Fink , 37 Ill. App. 3d 604, 346 N.E.2d 415 (1976); Bonate v. Bonate, 78 Ill. App.3d 164, 397 N.E.2d 88 (1979). "[W]hen a divorce decree is challenged in another jurisdiction a presumption of validity operates in favor of the requisite domicile." In re Marriage of Hanlon, 116 Ill. App.3d 157, 452 N.E.2d 60, 63 (1983)(citing Esenwein v. Commonwealth, 325 U.S. 279 (1945), Keck v. Keck, 56 Ill.2d 508, 309 N.E.2d 217 (1974)). The controlling fact in the present situation is that neither party has challenged the validity of the divorce or the requisite domicile; therefore, the presumption of validity goes unchallenged.

A state is required to give full faith and credit to a divorce decree rendered by another state, even though neither party was domiciled in the state granting the divorce, where the defendant appears personally or through an attorney and therefore has an opportunity to contest domicile. See Sherrer v. Sherrer, 334 U.S. 343 (1948); In re Day's Estate , 131 N.E.2d 50 (Ill. 1955); Alikonis v. Alikonis, 343 N.E.2d 161 (Ill. App. 1976). Here, neither party contested the lack of domicile of the other party and there was never an attack by either party as to the validity of the divorce.

Questions of the validity of foreign obtained divorces normally arise when a divorced spouse seeks widow's benefits from a husband who obtained an ex parte divorce in a foreign jurisdiction without the wife either submitting to the jurisdiction of the foreign court or the husband being domiciled in the foreign jurisdiction. In such a case the wife can attack the validity of the divorce and have it rendered invalid. The case in question here is distinguishable. Arlene R~ is not seeking to claim widows benefits from Howard M.m, her first husband, but rather is seeking to obtain benefits relating to her marriage to her second husband, Harold R~. This second marriage was subsequent to her uncontested divorce from Howard M~ was entered into in reliance upon the validity of the first divorce. Although Arlene R~ is not disputing the validity of the divorce, it is important to note that she would be estopped to deny the validity of the divorce in Illinois.

The rule governing estoppel in Illinois is as follows:

Where a person has sought and obtained a divorce decree or accepted the jurisdiction of the court to divorce one from a previous spouse, and then has remarried in reliance upon the divorce, that person is estopped from challenging the validity of the divorce decree at least insofar as the dissolution of the prior marriage is concerned.

GC opinion re Illinois looking to the Law of Mississippi to Determine Validity of Marriage and to Apply Estoppel, RA V (G~) to ARC, 6/15/81 The rationale behind the estoppel rule was explained as follows in McDonald v. Heale:

The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has not been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights ....

McDonald v. Heale, 182 N.E.2d 366, 371 (Ill. App. 1962), cert. denied, 372 U.S. 911 (1963). Both Mr. M~ and Mrs. R~ remarried in reliance on the Mexican divorce. It would seem inconsistent for the Secretary to insert himself in the shoes of either party and attack the validity of the divorce, doing that which neither of the parties could do.

Howard M~ sought the divorce through his attorney submitting a divorce petition in the Republic of Mexico and Arlene M~ joined him in the action. The filing of the divorce petition "submit[ed] him expressly and conclusively to the jurisdiction of the [Mexican] court" according to the language of the Mexican decree. Also, as stated in the Mexican divorce decree, "the petition having been admitted, defendant, Arlene M. M~ upon having accepted service of process, submitted herself expressly and conclusively to the jurisdiction of the [Mexican] court." Moreover, as was explained above, on October 4, 1988, Mrs. R~ filed a Petition to Enroll a "Final Divorce Decree" in DuPage County, State of Illinois. On October 26, 1988, Howard M~ filed a response to this petition admitting the allegations of Mrs. R~ petition and joining her in her request for enrollment of the divorce degree and for recognition be given the decree under full faith and credit.

The Mexican divorce decree entered by Howard M~ from Arlene M~ and enrolled in DuPage County Circuit Court upon the action of Arlene M~ should be recognized by the Secretary. The Secretary should accept the determination of the state court where the following prequisites are found:

1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by the parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

Gary v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). Although the Secretary is not bound to the decision of a State court in a proceeding to which he was not a party, he must recognize that court's determination "where it is fair and consistent with-the law as enunciated by the highest court of the state." Id. at 1373 (citing Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970)). Since the Illinois Circuit Court has recognized and enrolled the divorce and this action was consistent with the law of Illinois, the divorce granted Arlene M~ and Howard M~ is valid for purposes of Social Security benefit determinations.

C. PR 87-017 Order Vacating of Illinois Divorce Decree Dudley E. E~

DATE: October 30, 1987

1. SYLLABUS

DIVORCE -- EFFECT OF VACATION OF DECREE -- ILLINOIS

ILLINOIS -- Motion to Vacate Default Divorce Decree

A default divorce decree replete with misrepresentations and fraudulently concealed could be vacated by an Illinois court. The time during which the judgment was fraudulently concealed would be excluded when computing the two year statute of limitation for filing the motion to vacate. (E~, Dudley E. , ~ -- RAV (J~), to ARC, 10/30/87.)

2. OPINION

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 of 1956.

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 29, 1987.

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?

D. PR 82-024 Validity of a Dominican Republic Divorce Under Illinois Law - Enrique A~ A/N ~

DATE: July 14, 1982

1. SYLLABUS

DIVORCE -- Recognition of Foreign Divorce

Where neither party is domiciled in another state or foreign country, Illinois will not recognize the validity of a divorce attained in that State or Country. (A~, Enrique - ~- RA V(K~) to ARC - 07/14/82)

2. OPINION

This is with reference to your inquiry concerning whether Illinois would recognize a Dominican Republic divorce where neither party to the divorce proceeding was domiciled in the Dominican Republic.

The wage earner was born January l, 1942 in the Dominican Republic. He married Alma W~ on September 22, 1967 in Chicago, Illinois. A daughter, Mischelle, was born in Chicago on June 15, 1968. The wage earner was granted a divorce from Alma W/ in the Circuit Court of Cook County on September 31, 1975, in which it was stated that he resided in Cook County for a year prior to filing the complaint.

The wage earner married the claimant {Francis A~} in the Dominican Republic on May 31, 1979. Birth certificates show that the wage earner and claimant had two children - Enrique A~ born on August l, 1979 in Chicago and Lina Y~ born on August 13, 1980 in Chicago. Claimant gave birth to another child, Robert, on June 28, 1974 in Chicago. The wage earner and claimant signed their 1979 Illinois Income Tax Return on June 5, 1980 indicating they were married and filing a joint return with a Chicago address. They filed a 1980 Illinois Income Tax Return on May 5, 1981 indicating the same information. The wage earner died on May 31, 1981. The death certificate indicates he was born in the Dominican Republic, was a United States citizen, was married to the claimant at the time of death, and lived in Chicago at the time of his death.

At the wage earner's funeral in Chicago, claimant was informed by his mother and his daughter from the first marriage (Mischelle) that the wage earner had obtained a divorce in the Dominican Republic in February 1980. The claimant never received notification of the pending divorce, but went to the Dominican Republic to verify its validity after the funeral. The records showed plaintiff's residence as the Dominican Republic; however, the length of residency was not shown. The claim- ant's residence was not given. Claimant was summoned by the judge to appear in court on November 23, 1979, but the manner of summons was not shown. Claimant never received notice and, accordingly, did not file an answer. A final divorce decree was granted to the wage earner on February 22, 1980 on the ground of incompatibility of character. There is information in the claims folder that the wage earner had a business in Chicago and traveled back and forth to the Dominican Republic in connection with the business. His first child went to school in the Dominican Republic and his parents lived there.

You have inquired whether Illinois would consider the February 22, 1980 Dominican Republic divorce valid.

Illinois courts normally will give full faith and credit to a divorce decree obtained in another state or country under the doctrine of comity. Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949); Zalduendo v. Zalduendo, 45 Ill. App.3d 849, 360 N.E.2d 386 (1977); Skilling v. Skilling, 432 N.E.2d 8B1 (Ill. App. 1982). Although Illinois courts will consider the issue of domicile in deciding whether to give full faith and credit to a divorce decree obtained in another state, there is a heavy burden placed on the party attacking the divorce decree to show lack of domicile. Stilwell v. Continental Illinois National Bank, 31 Ill.2d 546, 202 N.E.2d 477 (1964); Fink v'. Fink, 37 Ill. App.3d 604, 346 N.E.2d 415 (1976); Bonate v. Bonate, 78 Ill. 164, 397 N.E.2d 88 (1979). We believe claimant met this heavy burden.

Domicile has been defined by Illinois courts as "the place where a person has his true, permanent home to which he intends to return whenever he is absent." In re Marriage of G~, 97 Ill. App.3d 1023, 1025, 423 N.E.2d 120!, 1203 (1981). The question of domicile is primarily one of intent and to establish a new domicile a person must physically move to a new home and live there with the intent of making it his permanent home. Keck v. Keck, 56 Ill.2d 508, 309N,E.2d 217, 220 (1974); In re Marriage of G~ , supra. The evidence shows that the wage earner resided in Illinois for a year prior to the complaint resulting in the 1975 divorce. He gave Chicago addresses in his joint 1979 and 1980 Illinois Income Tax returns. All his children were born in Chicago. The death certificate shows that the wage earner was a United States citizen, was married to the claimant, was living in Chicago at the time of his death, and was buried in Illinois. Although Dominican Republic court records show plaintiff resided in Santo Domingo in February 1980, the length of residency was not shown. Accordingly, we believe that claimant has met her heavy burden of showing that the wage earner was not domiciled in the Dominican Republic when he obtained the February 22, 1980 divorce. It is clear that the claimant was not domiciled in the Dominican Republic at that time.

While no Illinois court decision has expressly addressed the issue of whether an ex parte Dominican Republic divorce will be recognized where neither party was domiciled in the Domin