PR 06215.030 Nebraska
A. PR 96-001 Validity of Marriage to Number Holder in an Application for Widow's Benefits
DATE: February 5, 1996
A Nebraska court would hold null and void a marriage contracted in Nebraska prior to the expiration of Oklahoma's six month waiting period which is imposed before a valid divorce is effective.
Utah courts have consistently found that remarriage before the interlocutory decree of divorce becomes final or absolute renders the marriage void regardless of the State in which the divorce or remarriage occurred.
Disregard the discussion of deemed marriages in the last paragraph on page 4. The Omnibus Reconciliation Act of 1990 removed the prohibition against entitlement under the deemed marriage provision where the legal widow had been entitled and still retained the status of widow.
FACTS: Bernice L~ was divorced from her previous husband, Cecil P~, on July 3, 1941, in the state of Oklahoma. The divorce decree contained a provision that the decree would not take effect or become absolute until six months after the date of the decree. Bernice married Richard L~ in Nebraska on November 12, 1941, before the expiration of the six-month period. Her marriage to Richard was annulled in Nebraska twenty-eight years later on December 10, 1969, on the grounds that the "parties were married previous to the expiration of a six-month waiting period, and contrary to a divorce decree of the defendant in the District Court within... Oklahoma, and that said marriage was null and void, and should be annulled .... "
Richard L~, married Evelyn L~ on September 28, 1972, in Nebraska. Richard died in February 1994 in Utah, and Evelyn is currently receiving benefits as a widow on his record. Bernice filed for widow's benefits on Richard's record on May 30, 1995.
YOUR QUESTION IS: Can we ignore the annulment and award widow's benefits to Bernice? Based on an analysis of all of the applicable state statutes and case law, we believe that Bernice is not entitled to widow's benefits on Richard's record.
Your question concerns the validity of Bernice's marriage to Richard when the marriage occurred prior to the date when her divorce from Cecil P~ became final. The Social Security regulations at 20 C.F.R. § 404.335 (1995) provide, among other things, that an applicant may be entitled as the widow of an individual who was fully insured when he died if the applicant is the insured's widow based on a relationship described in §§ 404.345 through 404.346. Section 404.345 provides that Social Security must "look to the laws of the State where the insured had a permanent home when he or she died" in order to determine relationship as a widow. If the insured and the applicant were "validly married" under state law at the time of the insured's death or if the applicant would have the same status as a widow under state laws concerning the devolution of intestate personal property, then relationship as a widow will be established. Id. A "permanent home" is defined as "the true and fixed home (legal domicile) of a person. It is the place to which a person intends to return whenever he or she is absent." 20 C.F.R. § 404.303 (1995).
The Master Beneficiary Record (MBR) in the claims folder indicates that a change of address was input for Richard in January 1994, one month before he died, and that his address was changed from Nebraska to Utah at that time. Evelyn's MBR shows that she also lived in Utah apparently until September 1995. On February 26, 1986, however, a notation was made in the claims folder that the insured vacationed out of the area in the winter months. In addition, the "Statement of Death by Funeral Director" form in the file shows that Richard's address as of the date of his death was a trailer park. These facts suggest that perhaps Utah was not his "permanent home." The evidence in the claims folder is insufficient, however, to be certain whether Richard's "permanent home" was Nebraska or Utah. In any event, we believe that Bernice would not be entitled to widow's benefits whether we apply Nebraska or Utah law.
The Oklahoma statute in effect in 1941 at the time of the divorce between Cecil and Bernice provided:
And it shall be unlawful for any person who has a living husband or wife to marry another person in any other state within six (6) months from date of decree of divorcement granted in this State and cohabit with such second husband or wife in this State during said period. It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement... Any person marrying or otherwise violating the provisions of this Section shall be deemed guilty of bigamy.
Okla. Stat. Ann. tit. 43, § 123 (historical and statutory notes West 1996). Oklahoma's statute has been held to have no extraterritorial effect. In re Sanders v. Sanders., 305 P.2d 655, 658 (1957). There is no evidence to indicate that the Oklahoma court did not have jurisdiction over the divorce or that the divorce was not valid; thus, the issue is the date that the decree was finalized. 1
The Nebraska statute in effect in 1941 provided that a "decree of divorce shall not become final or operative until six months, except for the purpose of review, and that 'the district court may, at any time within said six months, vacate or modify its decree.'" Dudgeon v. Dudgeon, 5 N.W.2d 133, 136 (Neb. 1942) (citing Neb. Rev. Stat. § 42-340 (1913) which the court said was the same as the statute in effect in 1929). The statute was amended in 1943 to provide: "A decree of divorce shall not become final or operative until six months after trial and decision, except for the purpose of review by appeal, and by such purpose only the decree shall be treated as a final order as soon as rendered .... " Neb. Rev. Star. § 42-340 (1943). Scott v. Scott, 46 N.W.2d 627, 631 (Neb. 1951). Section 42-103 provided: "marriages are void... (2) when either party has a husband or wife living at the time of the marriage .... "Scott, 46 N.W.2d at 631. Nebraska courts have held that a divorce decree rendered by a foreign state (or country) will not be recognized in Nebraska unless one of the parties was domiciled in that foreign state (or country) at the time of the divorce. Weber v. Weber, 265 N.W.2d 436 (Neb. 1978); Zenker v. Zenker, 72 N.W.2d 809 (Neb. 1955); Yost v. Yost, 72 N.W.2d 689 (Neb. 1955); Lippincott v. Lippincott, 3 N.W.2d 207 (Neb. 1942). Because there is no evidence to suggest that Bernice was not domiciled in Oklahoma at the time of her divorce from Cecil, Nebraska would likely recognize the Oklahoma divorce. Nebraska's current statute, now codified at § 42-372, continues to provide that a divorce decree does not become final until six months after the decree is rendered (or at death of one of the parties, if earlier). Neb. Rev. Star. § 42-372 (1995). There has been no substantive change in Nebraska's statute over the years.
If, in fact, Richard's "permanent home" was Nebraska at the time of his death, the facts of McGuire v. Califano, 440 F. Supp. 1031 (D. Neb. 1977), are substantially the same as the facts of Richard and Bernice's case. In McGuire, the district court considered California and Nebraska domestic relations laws in an appeal from a denial of widow's benefits by the Social Security Administration. California statutes in effect at that time required the passage of one year after the entry, of the interlocutory judgment before a final decree of divorce could be entered. Id. at 1033. The deceased insured person was domiciled in Nebraska at the time of his death. The Nebraska district court found that plaintiff's marriage to. the insured in Nebraska before the expiration of the one-year waiting period Administration's denial of widow's benefits. Id. at 1036. Based on Nebraska case law and statutes, the marriage between Bernice and Richard took place before her Oklahoma divorce from Cecil was final, and Nebraska would likely hold that her marriage to Richard was not a valid marriage. Thus, Bernice would not be entitled to widow's benefits on Richard's record. This position is supported by the fact that a Nebraska court annulled the marriage on this basis.
Utah law in effect in 1941 also provided that a divorce decree "does not become absolute for six months after its entry, and that any marriage contracted by a party to a divorce proceeding within the time allotted for an appeal from such final decree shall be null and void." In re Dalton's Estate, 167 P.2d 690, 691-92 (Utah 1946) (quoting Sanders v. Industrial Comm'n., 230 P. 1026 (Utah 1924). See also Johnson v. Johnson., 207 P2d 1036, 1037 (Utah 1949) (quoting Utah Code Ann. § 40-3-7 (1943) which provided that a divorce decree "shall become absolute at the expiration of six months from the entry thereof, unless an appeal or other proceedings for review are pending..."). Utah's current statutes continue to provide that a divorce decree does not become absolute until the expiration of the time designated by the court not to exceed six months from the signing and entry of the decree. Utah Code Ann. § 30-3-7 (1994). Utah statutes also specifically provide: "Neither party to a divorce proceeding which dissolves their marriage by decree may marry any person other than the spouse from whom the divorce was granted until it becomes absolute. If an appeal is taken, the divorce is not absolute until after affirmance of the decree." Utah Code Ann. § 30-3-8 (1988). Utah case law has specifically addressed situations similar to Bernice's, and the court has consistently found that remarriage before the interlocutory decree of divorce becomes final or absolute renders the marriage void, regardless of the state in which the divorce or remarriage occurred. See Hendrich v. Anderson, 191 F.2d 242 (10th Cir. 1951); Van Der Stappen v. Van Der Stappen, 815 P.2d 1335 (Utah Ct. App. 1991); Cahoon v. Pelton, 342 P.2d 94 (Utah 1959); Anderson v. Anderson, 240 P.2d 966 (Utah 1952); Johnson, 207 P.2d at 1037-41; In re Dalton's Estate, 167 P.2d 690 (1946); Utah Fuel Co. v. Industrial Comm'n, 234 P. 697 (Utah 1925). Therefore, if Richard's "permanent home" was in fact Utah, Bernice would also not be entitled to widow's benefits.
The Social Security regulations provide that if a relationship as the insured's widow cannot be established under 20 C.F.R. § 404.345, it is possible to find a widow entitled to benefits based on a "deemed valid marriage" under 20 C.F.R. § 404.346 (1995). This regulation requires, however, that the insured and the applicant were living together in the same household when the insured died, which clearly does not apply in Bernice's case. In addition, the regulation at § 404.346 prohibits entitlement under this section if another person has been entitled to benefits as the widow under applicable state law as of the date of application. Because Evelyn is so entitled, Bernice cannot be entitled pursuant to § 4O4.346.
Similarly, Bernice does not qualify for surviving divorced spouse's benefits under 20 C.F.R. § 404.336 (1995), which provides that an applicant may be entitled to surviving divorced wife's benefits if (1) she was "validly married to the insured under State law as described in § 404.345"; and (2) she was married to the insured for at least ten years immediately before the "divorce" became final. Although Bernice was married to the insured for at least ten years, she was not "divorced" from him; her marriage was annulled. Nor was she "validly married" to the insured under Utah or Nebraska law as discussed above.
Finally, Bernice also could not be entitled to benefits based on a common law marriage because neither Nebraska nor Utah recognize common law marriages. Hendrich v. Anderson, 191 F.2d 242, 244 (10th Cir. 1951 ); Abramson v. Abramson, 62 N.W.2d 919 (Neb. 1956); Scott, 46 N.W.2d at 631; Schurler v. Industrial Comm'n, 43 P.2d 696 (Utah 1935). Therefore, for all of the above reasons, Bernice is not entitled to widow's benefits. We hope this answers your question.
1/ Oklahoma's statute was later amended to prohibit only those marriages contracted in Oklahoma within six months after a divorce. In Copeland v. Stone, 842 P.2d 754 (Okla. 1992), the Oklahoma Supreme Court held that because the state's statute prohibits only those marriages celebrated within Oklahoma during the six-month period following a divorce, a marriage conducted in another state during that period would be considered valid in Oklahoma. Id. at 756.