In your memorandum of March 28, 1986, you requested that this office render a legal
opinion concerning the validity of the divorce decree issued by the Circuit Court
of Richland County, South Carolina, involving Lallie H~ and Aaron Ms. H~ filed for
widow's benefits based on the account of Rhett S~ The facts are as follows:
Lallie S~, also known as, Lallie H~, married the number holder, Rhett S~, on July
26, 1936. They were married until his death in December, 1972. The records show that
Lallie S~ received a mother's benefit based on her deceased husband's record from
the time of his death until December, 1977. Upon her subsequent marriage to Paul S~
the benefits ceased. The record shows that Lallie and Paul S~ were divorced on April
10, 1979. Lallie was then married on May 24, 1979 to Aaron H~. The records also indicate
that Lallie stated that she was then single at the time she filed for disabled widow's
benefits in March 1980 based on the record of Rhett S~ Since her marriage to H~ was
discovered by the district office upon her filing a claim for widow's benefits in
1980, the administration disallowed her claim on the basis of her then current marriages.
The record shows that on September 5, 1985, Lallie H~ filed an application based on
Rhett S~ record for widow's benefits, and at the same time, submitted the subject
divorce decree indicating her divorce from Aaron H~ in August, 1985. The divorce was
granted on the statutory grounds of one year's separation. Contact with the court
which granted the divorce revealed that the only submitted evidence of the alleged
separation was the sworn affidavits of Lallie and Aaron H~
For reasons hereinafter stated, it is this office's opinion that the divorce issued
on the grounds of one year's separation is not binding on the Secretary, and for purposes
of Social Security benefits, Lallie H~ and Aaron H~ should be deemed wife and husband.
It is well settled law that the Secretary will be bound by state trial court decisions
only where the following prerequisites 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 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. SSR 83-37(c); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); See, also, Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967). We find that the divorce decree granted by the Circuit
Court of Richland County, South Carolina, does not met the 2nd and 4th prerequisites
established in Gray, supra.
First, with divorce was not genuinely contested before the State by parties with opposing
interests as the record clearly demonstrates that the parties contrived the divorce
for their mutual benefit, i.e., to increase their Social Security benefits. The case
file indicates that Lallie H~ and her husband submitted a request to SSA to determine
if her Social Security benefits would increase if the parties were divorced. Ms. H~
wanted to know if she would be entitled to any other SS benefits if she was divorced.
A Social Security representative quoted Lallie H~ as saying, "She and Aaron might
have to get a divorce because they couldn't live on the little bit of Social Security
they are getting." This statement suggests that the parties had mutual interests in
obtaining the divorce.
The file also shows that Lallie H~ and Aaron H~ made the inquiry about divorce and
Lallie's Social Security situation in the Spring of 1985. Lallie H~ filed for divorce
in August 1985. The records show that Lallie H~ alleges a twelve month separation
from her husband on the divorce decree in her petition on August, 1985, but she states
she had been separated only since February 1985 on an SSA Form 8200. Further, Lallie
and Aaron opened a joint checking account on March 14, 1985, and both parties resided
at the same location as established by the fact that SSA forwarded some of their correspondence
and checks to the same address and as further evidenced by the factors discussed below.
Additionally, the file indicates that the only evidence before the court relating
to whether the parties had in fact resided in a bonafide state of separation was two
sworn affidavits submitted by the parties. Therefore, it is this office's opinion
that Lallie and Aaron H~ did deliberately contrive the divorce for their mutual benefits,
(i.e., to increase their Social Security benefits). Accordingly, the parties to the
divorce did not have opposing interests, and hence, the declaration of divorce is
not binding on the Secretary since the issues in the divorce proceedings were not
genuinely contested. Second, the divorce decree is not binding because the subject
judgment is not consistent with the law enunciated by the South Carolina Supreme Court.
Lallie H~ filed suit and was granted a divorce on the statutory grounds of one year's
separation under The Code of Laws at South Carolina, Section 20-3-20(5), Grounds For
Divorce. She contended that the cessation of cohabitation had been established.
However, there is strong evidence in file to demonstrate that Lallie and Aaron H~
were living together in the same household during the year in question, August 1984
to August 1985. Thus, the parties had not ceased cohabitating or living separately
and apart. Frazier v. Frazier, 228 S.C. 149, 89 S.E. 2d 225 (1955); Machado v. Machado, 220 S.C. 90, 66 S.E. 2d 629 (1951); Code of Laws of South Carolina, 20-3-10(5).
The foregoing authorities establish that a divorce on the grounds of desertion in
South Carolina must be based on the following: (1) cessation from cohabitation for
the statutory period of one year; (2) intent on the part of the absenting party not
to resume it; (3) absence of the opposite party's consent; and (4) absence of justification.
The file evidence shows that Aaron was hospitalized on three occasions in 1985 at
the Veterans Hospital at Columbia, South Carolina, March 4th, June 10th and August
25th. On all three occasions he was discharged to the living quarters occupied by
his wife, Lallie, at 800 Jefferson Allen Drive, Columbia, South Carolina. The records
show that when Aaron H~ was hospitalized in August 1985, he gave his address as 800
Jefferson Allen Drive. In addition, his Title II benefits are being sent to that address.
Although Lallie was granted a divorce on the grounds of desertion, the above-mentioned
facts demonstrate that she and Aaron H~ were residing at the same living quarters
during the statutory period.
Further, in South Carolina when a husband and wife occupy the same living quarters,
the law presumes that they engage in marital relations. Boozer v. Boozer, 130 S.E.2d 903 (1963). The South Carolina Supreme Court in Boozer, supra, explained in language from other authorities that ". . . the word separation,
as applied to the legal status of a husband and wife * * * means a cessation of cohabitation
of husband of wife. Cohabitation according to Winston's Dictionary, Encyclopedia Edition
(1943), means: "To live together as man and wife, usually, though not necessarily,
implying sexual intercourse." The overwhelming weight of authority as to what is meant
by living 'separate and apart', is in accord with the view expressed in 17 Am. Jur.,
Sec. 162, p. 232, as follows: 'The discontinuance of sexual relations is not in itself
a living "separate and apart" within the meaning of some statutes, and a divorce will
be denied where it appears that during the period relied upon, the parties had lived
in the same house." Id. at 905. The "living separate and apart" language of Section 20-3-10(5) of the South
Carolina Code requires that the parties live in separate domiciles for a period of
a year. Barnes v. Barnes, 280 $.E.2d 539 (1981). Since the factors mentioned above clearly show that the parties
lived at the same address during the year before the divorce was granted, we conclude
that a divorce decree issued on the basis that the parties lived "separate and apart"
is inconsistent with the rulings of the South Carolina Supreme Court.
Further, this office concludes that the public activities and behavior of Lallie and
Aaron as described in this discussion constitutes "holding out as man and wife" to
the community. "Marriage is not a private affair, involving the contracting parties
alone. Society has an interest in the marital status of its members, and when a husband
and wife live in the same house and hold themselves out to the world as man and wife,
a divorce will not be granted on the grounds of separation." Id. at 905.
It is a well established rule in South Carolina that in an equity case, findings of
facts by a master, which are concurred in by circuit judge, are conclusive upon Supreme
Court and will not be disturbed unless it is shown that such findings are without
any evidence to support them, or are against the clear preponderance of the evidence.
Oswald v. Oswald, 230 S.C. 299, 95 S.E.2d 493 (1956). This office is convinced that the South Carolina
Supreme Court would overturn the judgment in the subject case based on the probative
evidence in the claim file and would not sustain the divorce on the ground of desertion.
Based on the foregoing discussion, your office would be warranted in finding that
Lallie and Aaron H~ are married, one to the other, for Social Security purposes.