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
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.