PR 06215.055 Wisconsin
A. PR 84-017 Validity of Remarriage Within Statutory Waiting Period June M~
DATE: April 5, 1984
DIVORCE -- RESTRICTIONS AGAINST REMARRIAGE -- WISCONSIN
A Wisconsin statute that provides that marriages contracted during the one year "waiting period" following a final divorce are "void" has been interpreted to mean "voidable" and may only be applied where some affirmative action such as a court challenge to the validity of the marriage has taken place. Absent such a challenge, a subsequent marriage is validated as of the date of the expiration of the waiting period when the impediment to the marriage no longer exists. (M~, June, ~ -- RAV (P~), to ARC, 04/05/84.)
You have asked us to review the file of June ~ for a determination of her possible eligibility for wife's insurance benefits on the account of Raymond M~ . For the reasons discussed below, we believe that June M~ is entitled to wife's insurance benefits.
June M~ (formerly S~) was married to Harold S~ between January, 1934 - September, 1951. 1_/ They resided in Fond du Lac, Wisconsin and a divorce was granted by Wisconsin courts on September 24, 1951. At that time Wisconsin's statute, W.S.A. Section 245.03(2), 2/ required that parties wait one year after a final divorce prior to entering into another marriage. _3/ Despite the statutory waiting period, June M~ married Raymond M~ in Iowa on May 17, 1952. The M~'s returned to Wisconsin and resided there until they separated in 1970. They never obtained a divorce. Raymond M~ remarried Luella B~ on November 14, 1974.
Wisconsin law in effect at the time of June M~'s remarriage specifies that marriages entered into within the one year statutory waiting period are "void." W.S.A. Section 245.03(2). This office has thoroughly reviewed Wisconsin's law concerning the validity of marriages in Wisconsin in two opinions. "Change in Wisconsin Divorce Law - Validity of Remarriage within Statutory Waiting Period", RA V (D~) to ARC-RSI, Chicago, 1/11/79, and J~ Robert M., ~ RA V (W~) to ARC-RSI, Chicago, 12/27/78. Those opinions 'determined that under Wisconsin law marriages within the statutory waiting period are voidable, not void and thus can be validated. Wisconsin statutes further provide under W.S.A. Section 247.02 that "no marriage shall be annulled or held void except pursuant to judicial proceedings." Thus, to void a marriage requires some affirmative action. See "Change in Wisconsin Divorce Law" supra.
The Social Security POMS provision in accordance with the above analysis states as follows: "A voidable marriage is a marriage which is capable of being adjudged void but which is considered valid unless and until declared void as a result of a court action." POMS GN 00305.050. The POMS Manual was amended to reflect the opinions of this office and now characterize marriages within the statutory waiting period as "voidable". POMS GN 00305.435, April 1983.
Wisconsin law permits validation of an otherwise void marriage where one of the parties entered into the marriage in good faith and the couple continued to live together as husband and wife after removal of the impediment to their marriage (e.g. the requirement that claimant wait one year before remarrying) W.S.A. Section 245.35. Wisconsin courts have interpreted "void" to mean "voidable" and have validated an otherwise unlawful marriage where the above two conditions were met and the impediment to the marriage was removed. See Davidson v. Davidson, 35 Wis. 2d 401, 151 N.W.2d 53 (1967); Hutschenreuter v. Hutschenreuter, 23 Wis. 2d 318, 127 N.W. 2d 47 (1964); Hoffman v. Hoffman, 242 Wis. 83, 7 N.W. 2d 428 (1943). See also J~, Robert M., ~, RA V (W~) to ARC-RSI, Chicago, 12/27/78.
Wisconsin courts have also validated an otherwise void marriage even where the above discussed statutory requirements were not met. In Smith v. Smith, 52 Wis. 2d 262, 190 N.W. 2d 174 (1971) the court found that the parties did not enter into a subsequent marriage in good faith nor did they live together at the time the impediment was removed. The impediment in the Smith case was the existence of a live first husband. The court found that upon his death, the subsequent marriage could be validated. The court cited the strong public interest in maintaining a marriage relationship. The court also emphasized the extent of its discretion in making determinations concerning the validity of a marital relationship. See also Halker v. Halker, 92 Wis. 2d 645, 285 N.W.2d 745 (1979); Corning v. Carriers Ins. Co., 88 Wis. 2d 1, 276 N.W. 2d 310 (1979).
Under Wisconsin precedents and the regional attorney opinions cited above, it is our view that the marriage of June and Raymond M~ was validated on September 24, 1952, when the one year statutory waiting period was complete. The facts in this case show that June and Raymond resided together continuously for 18 years. It is questionable whether either of them entered into the marriage in good faith since they were Wisconsin residents both prior to and following their marriage in Iowa. Although the divorce decree omits mention of the statutory waiting period, the Iowa marriage certificate required them to affirm that neither of the parties had been divorced within the year. Raymond M~ stated to Social Security officials that "we had been together so long I guess we just assumed the waiting period was up and wanted to get married right away. I did not really even think about waiting any time." Contact Re- port 6/23/82. Under the Smith ruling, however, and its strong emphasis on validating marriages, it is our belief that the M~ 's marriage would be sustained. Further, there has not been any attempt to nullify the marriage through judicial proceedings as required by the statute. We believe June M~ is entitled to wife's benefits.
These facts also raise questions about Raymond M~ 's subsequent marriage to Luella B~. In our prior opinion we expressed the view that the best reasoned position is that once an improper marriage has become valid, that marriage may then be dissolved only by divorce and not by annulment. See J~ , supra. Wisconsin courts have, however, annulled marriages prospectively and the court's broad grant of discretion in this area does not make its actions improper. See Eliot v. Eliot, 77 Wis. 634, 46 N.W. 806 (1890).
A living spouse has the right to seek annulment of a prior marriage while all parties are alive and Luella B~ may choose to exercise this option. See Ginkowski v. Ginkowski, 28 Wis. 2d 530, 137 N.W. 2d 403 (1965).
In summary, we believe that the M~ marriage, although improper when contracted, became valid at the end of the one year statutory waiting period in September, 1952. Thus, June M~ is entitled to wife's benefits from the account of Raymond M~.
1/ June M~ misrepresented her age when marrying Harold S~ in Illinois. She was born on June 23, 1917 and stated her age as 18 rather than 16. Illinois Statutes, S.H.A. Ch. 89 §3 states that a 16-18 year old female may contract a valid marriage with parental consent. Illinois courts have found the' language "directory", not mandatory and have held such marriages valid. See e.g. Haderaski v. Haderaski, 415 Ill. 118, 112 N.E. 2d 714 (1953); Reifschneider v. Reifschneider, 241 Ill 92, 89 N.E. 255 (1909); People v, Ham, 206 Ill. App. 543 (1917). June M~ also misrepresented her age to Iowa authorities upon her marriage to Raymond M~ . She gave her birth date as 1918 rather than 1917. Although this misrepresentation could potentially subject her to penalties, this office does not believe it is a material factor changing our position on the status of the marriages involved here.
2/ Wisconsin's statutes concerning marriage and divorce have been revised and amended during 1977 and 1979. See W.S.A. Sections 765-768. This opinion is relying upon the statutory sections in effect during the time period relevant to the marriages and divorces at issue here.
3/ We have been asked whether the divorce is defective because the decree fails--to mention the one year statutory requirement. The Wisconsin statutes do not specifically require that the one year waiting period be embodied in the decree. W.S.A. Section 247.37(3) states that:
"It shall be the duty of every judge, who shall grant a judgment or decree of divorce, to inform the parties appearing in court that the judgment or decree, So far as it affects the status of the parties, will not become effective until one year from the date when such judgment or decree is granted.
We do not believe the omission in the written document is sufficient to invalidate the S~ divorce.