PR 06225.040 Oklahoma

A. PR 00-001 Request for Opinion: Effect of Order Vacating Divorce Decree - M~

DATE: December 7, 1999

1. SYLLABUS

Under Oklahoma law, there are two ways to vacate or set aside a divorce decree. First, under the Oklahoma Marriage and Family Code, when a district or superior court issues a divorce decree, the court can dissolve its own decree provided that both parties to the divorce action agree to set aside the divorce. Second, under the Oklahoma Code of Civil Procedure, a district court can vacate or modify its own judgments or orders when certain circumstances exist, such as fraud by a party, or mistake, neglect, of omission by the clerk.

The effect of a court order vacating a divorce decree is to render the divorce a nullity so that the parties were effectively never divorced.

2. OPINION

This memorandum responds to your request for our opinion about the effect of a court order setting aside a divorce decree under Oklahoma law. Specifically, you ,asked the following questions:

1. Does a state district court have the authority to set aside a divorce?

2. What is the effect of an order setting aside a divorce decree?

3. Is claimant Lu A. F~ considered to have been lawfully divorced from August 1998 through December 1998?

4. Is claimant Lu A. F~ entitled to widow's benefits on the record of her first husband, Richard F~, for any time prior to February 1999?

5. Was Lu A. F~ lawfully married to William M~, her second husband, at the time of his death and entitled to the lump sum death payment on his record?

Based on our review of applicable State laws, it is our opinion that the District Court of Mayes County, Oklahoma, had the authority to set aside the August 1998 divorce decree of Lu A. F~ and William M~ and that the order vacating the divorce was effective the date it was rendered. Because the order vacating the divorce decree stated that the divorce was set aside, vacated, and held for naught, the divorce was reordered a nullity, as if the parties had never been divorced, Because Lu A. F~ and William M~ were essentially never divorced, Lu A. F~ did not qualify for widow's benefits on Richard F~'s record. However, Lu A. F~ is entitled to the lump sum death payment on the record of William M~ because she was lawfully married to him at the time of his death and living in the same household with him at the time of his death.

In June 1958, Lu A. B~ married Richard F~, and the two remained married until Richard F~'s death in June 1977. In November 1980, Lu A. F~ married William M~. In January 1989, Lu A. F~ and M~ divorced. Pursuant to a court order, the divorce was Set aside in March 1989. Lu A. F~ and M~ remained married until August 1998, when they divorced a second time. In September 1998, Lu A. F~, age 60, applied for aged widow's benefits on the record of her first husband, Richard F~. In December 1998, Lu A. F~ and M~ agreed to set aside their August 1998 divorce decree and the District Court for Mayes County, Oklahoma vacated the August 1998 divorce decree. In February 1999, William M~ died.

Your first question asks whether the District Court has the authority to set aside a divorce decree. Oklahoma law provides two ways to vacate or set aside a court order. First, the parties can agree to set aside a divorce decree under the Oklahoma Marriage and Family Code. Okla. Stat. Ann. Tit. 43 §133 provides:

When a decree of divorce has been issued by a district or superior court said court is hereby authorized to dissolve said decree at any future time, in or out of the term wherein the decree was granted, provided that both parties to the divorce action file a petition, signed by both parties, asking that said decree be set aside and held for naught. And further provided that both parties seeking to have the decree set aside shall make proof to the court that neither one has married a third party during the time since the issuance of the decree of divorce.

Second, under the Oklahoma Code of Civil Procedure, a district court can vacate or modify its own judgments or orders when certain circumstances exist, such as fraud by a party, or mistake, neglect, or omission by the clerk. Okla. Star. Ann. lit. 12, §1031. Oklahoma law further provides that a court may correct, open modify or vacate a judgment or a party can file a motion to vacate within thirty days after a judgment, decree, or appealable order is filed. Okla. Star. Ann. Tit. 12 §1031.1

The information shows that in December 1998 the District Court of Mayes County, Oklahoma set aside the above-mentioned August l1, 1998, divorce decree. Under Title 43, §133 of the Oklahoma Marriage and Family Code, the District Court had the authority to do this. Because the Court had the authority to set aside the divorce decree under Okla. Star. Ann. Tit. 43 §133, and because there is no evidence that grounds were sufficient for the parties to proceed under Title 12 §1031, or §1031.1, no further discussion of Title 12 § 1031 or § 1031.1 is necessary.

The second question you asked involves the effect of an order setting aside the divorce decree. Title 43 §133 of the Oklahoma Marriage and Family Code states that upon agreement of the parties, a divorce decree can be set aside and held for naught. The December 1998 order which set aside the divorce decree stated, "That. the decree of divorce filed on the 11th day of August, 1998 shall be and hereby is set aside, vacated, and held for naught, the relationship of husband and wife is hereby reinstated between the parties hereto." The term to vacate means to "annul; to set aside; to cancel or rescind; to render an act void." Meekins v. Department of Institutions, Social and Rehabilitative Services, 554 P.2d 872, 875 (Okla. Ct. App. 1976)(citing Black's Law Dictionary.). Vacation is a remedy used when the parties believe some error makes the continued existence of an order undesirable. Id. In Meekins, the court found that to vacate something is to destroy it, to eliminate it, to render it a nullity. When Lu A F~ and William M~ agreed to vacate the divorce decree, they intended to render the divorce a nullity, as if it never occurred. Therefore, Lu A. F~ and William M~ were never divorced. Based on the caselaw defining the term vacate, our opinion is that the order setting aside the divorce decree rendered the August 1998 divorce a nullity, so that Lu A. F~ and William M~ were effectively never divorced. See also, In the Matter of the Estate of Pugh, 281 P.2d 937, 939 (OK 1955) (Joint petition and request of both parties vacated the divorce decree and restored them to their former marital status and restored the property rights between them as they existed prior to the granting of the divorce). In response to your third question therefore, Lu A. F~ was not lawfully divorced from William M~ from August 1998 through December 1998.

You also asked whether there had been ,my subsequent changes to legal precedents on this matter since the early 1970's. The information you submitted refers to Okla. Stat. Ann. Tit. 12 § 1031, the provision under the code of civil procedure which provides for vacation and modification of court orders. This law is still in effect. However, as noted above, this law does not apply in this ease because the parties have not alleged fraud, or mistake by the clerk, but instead wish to set aside the divorce decree by agreement, as contemplated by Title 43 of the Oklahoma Marriage and Family Code. The material you submitted also referred to Okla. Stat. Ann. Tit. 12 §1288. In 1989, this statute was renumbered as part of Title 43 of the Oklahoma Marriage and Family Code.

Your next question asks whether Lu A. F~ is entitled to widow's insurance benefits on the record of her first husband, Richard F~, for any of the months prior to February 1999. Once the District Court issued an order vacating the August 1998 divorce between Lu A. F~ and William M~, the effect of the order was to render the divorce a nullity. If the divorce is considered a nullity, Lu A. F~ and William M~ were effectively never divorced. If Lu A. Fire was never divorced from William M~. she could not quality as F~'s widow for insurance benefits under the Social Security Act (the Act). Entitlement to "widow's insurance benefits" is governed by the Act which provides, in pertinent part:

"(e)(1) The widow (as defined in section 216(c)) and every surviving divorced wife (as defined in section 216(d)) of an individual who died a fully insured individual, if such widow or such surviving divorced wife-

(A) is not married (B)(i) has attained age 60, or (ii) has attained age 50 but has not attained age 60 and is under a disability (as defined in section 223(d) which began before the end of the period specified in paragraph (4) (C)(i) has filed application for widow's insurance benefits ... and, (D) is not entitled to old-age insurance benefits or is entitled to old age insurance benefits each of which is less than the primary insurance amount as determined after application of subparagraphs (B) and (c) of paragraph (2)) of such deceased Individual shall be entitled to a widow's insurance benefit ..... "42 U.S.C. §402(e)(I)(emphasis added).

By operation of the order setting aside the divorce decree, Lu A. F~ was not divorced from, but married to William M~ at the time of her application for benefits in September 1998. Therefore, she cannot qualify for widow's benefits on the record of Richard Fire, her first husband, because she had remarried by the time she had come to claim them.

Finally, you ask whether Lu A. F~ is entitled to a lump sum death payment on the record of William M~. The Social Security Act provides two ways for a widow to establish entitlement to a "lump sum death payment." First, a widow can get a lump sum death payment if she was living in the same household with the deceased at the time the death of the insured. 42 U.S.C. §402(i). Second, a widow can receive a lump sum death payment if she is entitled to widow's benefits under subsection (e) of the Act. 42 U.S.C. §402(i)(1). In the application for the lump sum death payment, Lu A. F~ stated that she was living in the same household as William M~ at the time of his death. Because Lu A. F~ had been living in the same household at the time of William M~'s death, Lu A. F~ would be entitled to the lump sum death payment under §402(i) of the Act. Therefore, it is our opinion that Lu A. F~ is entitled to the lump sum death benefit on the record of William M~,


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PR 06225.040 - Oklahoma - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008