PR 06305.016 Illinois
A. PR 10-010 MOS-Illinois – Void or Voidable Marriage – Benefit Status of former spouse Your reference: S2D5G6 Our reference: 09-0150; ID 903103
DATE: October 14, 2009
The claimant petitioned to have the marriage declared invalid at its inception. Illinois court granted the annulment declaring the marriage invalid dating back to the date of marriage. SSA would not necessarily be bound by the order of annulment in this case since it may not have been contestsed by parties with opposing interests. The agency looks to see whether the order was consistent with State law. There is nothing on the face of the petition or the order that suggest that the decree was inconsistent with State law. The agency would not award divorced spouse's benefits where the claimant obtained an annulment of marriage from the number holder (rather than obtaining a divorce), unless the annulment was essentially the same as a divorce.
The claimant married the number holder in 1975. In 1992, the claimant petitioned the court to declare the marriage invalid. The claimant advised SSA that she sought an order of invalidation (the Illinois equivalent of an annulment), rather than a divorce, because she believed this would enable her to retain property that she owned when she and the number holder first married.
The claimant alleged in her petition to state court that the marriage should be invalidated because it took place the same day that she and the number holder obtained their marriage license and because she did not sign the marriage license. Alternatively, she asserted that the marriage should be declared invalid because the number holder “lacks the capacity to consent because of mental incapacity and because of the influence of drugs” and that she herself “was induced to enter marriage by duress and by fraud involving the essentials of marriage.”
There is no indication that the number holder contested the claimant’s petition. In February 1992, the court granted the annulment, declaring the marriage invalid dating back to the date of marriage. The claimant alleges that she was unable to “pursue” the property she owned prior the marriage, however, because she allegedly became disabled within two weeks after the court order invalidating the marriage.
To be entitled to divorced spouse’s benefits, an individual must, among other things, be both divorced from the number holder and also have been validly married (or in a putative marriage or deemed valid marriage) to the number holder for at least 10 years immediately before the date the divorce became final. 42 U.S.C. §§ 402(b)(1), 416(d); 20 C.F.R. § 404.331; POMS RS 00202.005(A); 00202.075. Thus, even before we reach the issue of whether the marriage to the number holder may have been valid for some purposes before it ended, we must find that the claimant is “divorced” from the number holder. Here, the claimant was not divorced from the number holder, but rather obtained an annulment of her marriage to the number holder.
The statute, regulations, and POMS all require that an individual be “divorced” to be entitled to divorced spouse’s benefits. See 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a), (a)(1); POMS RS 00202.005(A); see also POMS GN 00305.085 (while an individual may be entitled to divorced spouse’s benefits based on a putative marriage, “[d]ivorced putative spouse’s benefits cannot be paid based on an annulment or separation.”); POMS PR 06215.030 (PR 96-001) (to be eligible for divorced spouse’s benefits, an individual must be “divorced,” and an annulment will not substitute for a divorce); POMS RS 00202.040(A) (stating that eligibility for spouse’s benefits ends if the marriage to the number holder ends in a divorce “unless the spouse can be entitled to divorced spouse’s benefits,” and also ends if the marriage ends in an annulment, without suggesting potential entitlement to divorced spouse’s benefits).
A decree of annulment that is the legal equivalent of a divorce under state law may establish a basis for entitlement for divorced spouse’s benefit. In SSR 69-1, SSA determined that an annulment could be treated as a divorce because the annulment in that case ended a marriage that was valid at its inception, and the decree was entered because one party became insane after the inception of the marriage. Since New York law described an annulment to apply to situations where the marriage never came into existence, an annulment granted on the basis circumstances arising after the inception of the marriage was essentially a dissolution of the marriage, rather than a declaration that the marriage never came into existence. See also POMS GN 00305.120 (suggesting that an annulment may terminate a valid marriage, but this would usually be called a divorce). In our case, by contrast, the claimant alleged legal criteria that would render the marriage invalid at its inception. In fact, she intentionally pled the requirements of a declaration of invalidity (i.e., annulment) because she wanted the marriage to be declared invalid from its inception, in order to realize the property benefits of such an order.
SSA would not necessarily be bound by the order of annulment in this case because it may not have been actually contested by parties with opposing interests. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1340 (6th Cir. 1973)). In such circumstances, SSA generally looks to see whether the order was consistent with state law. See SSR 83-87c; POMS PR 06305.016 (PR 07-158). Here, some of the bases she alleged—that the marriage was invalid because it took place before the three-day waiting period and because the claimant did not sign the license—were clearly insufficient to support an annulment under state law because neither of these actions was required under the law in effect at the time the marriage took place. See 89 ILCS §§ 5, 7 (1966) (did not include any requirement that parties to marriage sign license); 40 ILCS § 207 & historical note (1980) (showing waiting period was not implemented until 1977) . However, the other bases the claimant alleged in her petition—that the number holder lacked capacity and that she herself was induced to enter the marriage by duress and fraud involving the essentials of the marriage—were (and are) legally sufficient reasons for granting a decree of invalidity. See 750 ILCS 5/301(1). There is nothing on the face of the petition or the order that would suggest that this decree was inconsistent with state law. It is possible that, if the number holder had actively contested the action, he could have produced evidence (particularly with respect to timeliness) that might have resulted in a different outcome. However, no such allegations have been made, and in any event, at this point, the claimant would likely be estopped from challenging the validity of the annulment since she herself intentionally sought the annulment, rather than a divorce, and she obtained certain property rights by virtue of the decree (even though she claims she never actually took advantage of those rights because she allegedly became disabled). Compare In re Paulius, 475 N.E.2d 1006, 1008 (Ill. App. 1985) (party accepting the benefits of a divorce decree may be stopped from later challenging the validity of that decree). Accordingly, it appears that the annulment order in this case was consistent with state law, and therefore generally should be accepted by SSA. See SSR 83-37c; POMS PR 06305.016 (PR 07-158).
In sum, SSA would not award divorced spouse’s benefits where the claimant obtained an annulment of her marriage from the number holder (rather than obtaining a divorce), unless the annulment was essentially the same as a divorce—i.e., it terminated a marriage valid at its inception—or the order of annulment was legally insufficient to support an annulment. Here, the claimant petitioned to have the marriage declared invalid at its inception, and the petition and order are consistent with the legal requirements for an annulment of a marriage invalid at its inception. Therefore, the claimant cannot be entitled to divorced spouse’s benefits.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel
B. PR 07- 158 MOS-Illinois: Annulment of Marriage After Entitlement - REPLY Your Reference: S2D5G6 R~, James ~ E.
DATE: June 21, 2007
Where the Court order was not genuinely contested by parties with opposing interests, SSA is not bound by the decision but should determine independently whether the judgment entered was consistent with prevailing State law. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its determination establishing the marriage and awarding spousal benefits.
You have asked whether an invalidity-of-marriage judgment entered on May 24, 2006, and relating to the marriage between numberholder, James E. R~, and spouse's benefits recipient, Norma M~ C~, would have any effect on Norma's continued eligibility for spouse's benefits on James's account. As discussed below, we conclude that, under Social Security Ruling (SSR) 83-37c (G~ v. R~), the Agency should not give the judgment for invalidity of marriage dispositive weight, but should independently determine whether the judgment entered was consistent with prevailing state law. We further conclude that, because there is no indication in the judgment or other documents of record that the state court made the required findings necessary for a valid annulment or dissolution of marriage, the judgment was not consistent with prevailing state law. As such, the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.
The record contains an apparently official marriage certificate from the Commonwealth of Puerto Rico indicating that, in November 1967, James and Norma were married. You indicated that James and Norma separated some time after the marriage, and that James subsequently married three additional times.
In March 2005, the Agency established the marriage, and awarded spousal benefits to Norma on James's account. James then submitted a signed statement to the Agency denying that he had married Norma, and he asked for an "original signed form to prove that it was not my signature and not me." At some point thereafter, the marriage certificate described above was added to the file.
Some time later, James filed a petition in Illinois State court seeking to have the marriage declared invalid. The petition indicated that James was aware of Norma's award of spousal benefits, and asserted that Norma's "claim" was fraudulent. Based on the petition, the Cook County Circuit Court issued a judgment for invalidity of marriage, finding that "the purported marriage ceremony between the parties on November 2, 1967, in Aguadilla, Puerto Rico," was "null, void, and invalid ab initio." The judgment indicated that Norma was notified of the proceedings by publication, but that, according to James, she lived out of state and her whereabouts were unknown.
As you know, to be entitled to spouse benefits, a claimant must be the legal spouse of a numberholder entitled to RIB or DIB. POMS RS 00202.001(A)(1), (C). And, the claimant will be found to be the legal spouse of the numberholder if it is determined that she is validly married to the numberholder under the state law of the numberholder's domicile at the time that the application is filed. POMS RS 00202.001(A)(1). Here, Norma was found to be James's legal spouse and was awarded spouse's benefits.
These benefits stop when the marriage to the numberholder ends by divorce (unless the spouse is entitled to divorced spouse's benefits) or the marriage to the numberholder is annulled. POMS RS 00202.040(A). The validity of the divorce or annulment is assessed by considering the law of the numberholder's domicile at death or at the time the application was filed, which, in this matter, is Illinois. POMS GN 00305.170.
The judgment for invalidity of marriage found that the parties' marriage was null, void, and invalid ab initio. However, because this state court domestic relations order was not genuinely contested by parties with opposing interests (in that Norma did not appear), the Agency must determine whether the order was consistent with prevailing state law. SSR 83-37c (G~ v. R~); POMS PR 04805.025 Michigan (A. PR 07-097) (applying SSR 83-37c to an uncontested annulment judgment); POMS PR 04805.016 Illinois (A. PR 97-004) (applying SSR 83-37c to an apparently uncontested order vacating a divorce decree); P~ v. S~, 898 F.2d 578, 580-81 (7th Cir. 1990) (holding that "the validity of a marriage for purposes of the Social Security Act depends not on the contents of an ex parte [divorce] order by a state trial court, but on what the highest court of the state would do with that order if it were challenged"); see also T~ v. A~, 1998 WL 597643 at **2 (7th Cir.) (recognizing applicability of SSR 83-37c to state court paternity judgment).
Under Illinois law, the grounds for declaring a marriage to be invalid are (1) that a party lacked the capacity to consent to the marriage or was induced to enter the marriage by force, duress, or fraud; (2) that a party lacked the ability to consummate the marriage; (3) that a party aged 16 or 17 years did not have parental or judicial consent; or (4) that the marriage was prohibited (e.g., bigamy). 750 Ill. Comp. Stat. Ann. 5/301 (West 2007). The ground for invalidity must be shown by a preponderance of the evidence, and, in addition, depending on the grounds for the declaration of invalidity, various time limits apply-ranging from 90 days after learning of the ground up to 3 years after the death of the first party to die. 750 Ill. Comp. Stat. Ann. 5/302 (West 2007). Although James asserted in his petition that he never married Norma and thus that her claim was fraudulent, he does not allege that he was fraudulently induced to enter a marriage, which could be a basis for a declaration of invalidity. And, the state court judgment fails to indicate any valid basis for invalidity. Moreover, there is no indication in either the petition or the judgment that the petition was filed within the requisite time limit. Under these circumstances, it is not clear that the state court judgment was consistent with prevailing state law, and thus the Agency is not bound by the state court judgment of invalidity. POMS PR 04805.016 Illinois (A. PR 97-004).
Although we have been unable to locate any definitive law on point, it is possible that the judgment could also operate as a divorce decree for purposes of entitlement to Agency benefits, but, again, only if the judgment and/or other evidence of record showed that the court's decision was consistent with state law. POMS PR 04805.025 Michigan (A. PR 07-097). In Illinois, a judgment for dissolution of marriage requires either a showing of fault, or that the parties have lived apart for more than 2 years, that irreconcilable differences have caused the irretrievable breakdown of the marriage and that efforts at reconciliation have failed or would not be in the best interests of the family. 750 Ill. Comp. Stat. Ann. 5/401(a) (West 2007). But, neither the decree nor any other evidence of record shows that one of these grounds was satisfied. Thus, the Agency also should not accept the state court judgment as a dissolution of marriage.
Because the judgment does not appear to satisfy the prevailing state law requirements for a declaration of invalidity or a dissolution of marriage, the Agency is not bound by the judgment. In the absence of any other pertinent evidence that would provide a basis for reopening, the Agency should continue to honor its March 2005 determination establishing the marriage and awarding Norma spousal benefits.
As discussed above, we conclude that the judgment should not change the status of the parties marital relationship for purposes of entitlement to Agency benefits.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel
C. PR 85-001 Effect of Judgment for Declaration of Invalidity of Marriage - Illinois Ann V. B~
DATE: January 8, 1985
ANNULMENT OF MARRIAGE
Where the claimant's second husband was unable to consummate the marriage due to inability to have sexual intercourse a judgment of invalidity of the marriage is retroactive to the date of the marriage in question and creates the same legal result as that which would have existed had the marriage never taken place. (V. B~, Ann, ~ --RAIV (W~), to ARC, 01/08/85
You have requested a legal opinion as to the effect of a judgment for declaration of invalidity of marriage upon Ann V. B~ 's entitlement to disabled widow's benefits. We conclude the judgment voided her marriage to Charles R~ and reentitles her to disabled widow's benefits.
Ann V. B~ was married to Lawrence V.B~ for 32 years until his death in April, 1974. V~ B~ received disabled widow's benefits until her remarriage on October 19, 1982 to Charles R~ . V.B~ lived with R~ until November 20, 1983. V~B~ sought to declare the marriage invalid because Charles R~ was incapable of consummating the marriage by sexual intercourse. On February 29, 1984, the court granted a "Judgment for Declaration of Invalidity of Marriage" finding that R~ "still lacks the physical capacity to consummate the marriage by sexual intercourse and this incapacity is incurable." The court found that Ann V. B~ did not know of the incapacity at the time of marriage and declared the marriage invalid as of October 19, 1982, the date of the marriage.
Applicable Law and Analysis
The Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Star. ch. 40 sec. 101 et seq. established the first statutory proceeding in Illinois for declarations of invalidity of marriage and replaced the prior common law action for annulment. Ill. Rev. Star. Ch. 40 sec. 301. Marshall J. A~ and Albert E. J~ Jr., Historical and Practice Notes to Ill. Rev. Stat. ch. 40 sec. 301. Thus, there are no longer annulment proceedings in the state of Illinois. The proceedings for declaration of invalidity, however, serve essentially the same function and should be treated in same manner as an annulment for Social Security purposes.
The 1977 Act, Ill. Rev. Stat. ch. 40 sec. 301 states in relevant part that a marriage can be declared invalid if: (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity. The declaration of invalidity may be sought by either party, "no later than one year after the petitioner obtained knowledge of the described condition," 1/ Ill. Rev. Stat. ch. 40 sec. 302(a)(2). The judgment may be made retroactive or non-retroactive. Ill. Rev. Stat. ch. 40 Sec. 304. This subsection altered prior Illinois Law because impotency alone was previously not sufficient grounds for annulment. Linneman v. Linneman, 111. App.2d 48, 116 N.E.2d 182 (1st Dist. 1953).
Under prior Illinois Law, a decree of annulment judicially declared void or voidable marriages void ab initio. Long v. Long, 15 Ill. App.2d 276, 145 N.E.2d 509 (1957). A void marriage is a nullity from the beginning under state law and cannot be made valid by any action of the parties (e.g. bigamy). A voidable marriage is legally valid unless one of parties seeks to judicially declare it invalid for one of the reasons specified in the state's statute. Under the 1977 Act, a judgment of invalidity retroactive to the date of marriage, renders both void and voidable marriages void. However, the court may grant non-retroactive judgments which are more in the nature of a divorce decree and do not have the same legal effect. Ill. Rev. Stat. ch. 40 See 304.
The Social Security Administration's POMS describe the effects of a void or voidable marriage on a claimant's entitlement to benefits. A void marriage "does not preclude initial entitlement to benefits of claimants who must not be married." POMS GN 00305.340. Where a voidable marriage has been annulled, initial entitlement to benefits is not precluded and benefits previously terminated because of such a marriage may be resumed" unless an alimony award has been made, POMS GN 00305.345A.
Ann V. B~ was awarded a retroactive judgment of invalidity. Under Illinois Law, her marriage to Charles R~m~m) was a voidable marriage judicially declared void and of no legal effect. Thus, she is entitled to a continuation of disabled widow's benefits from October 19, 1982.
1/ The court documents submitted with the Social Security file indicate that Ann V~ B~ lived with Charles R~ for over a year, which would seem to be beyond the statutory period provided for by the Act. Because the status of the marriage affects the relationship of the claimant and a third party, rather than the relationship of the claimant to the wage earner on whose account she is seeking benefits, it is not appropriate for the Secretary to look behind the court's order and she must accept it as valid. See Section 216(h)(1)(A) of the Social Security Act; OASI Collateral Attack on Illinois Annulment Decree obtained through Fraud by Wife (Robert D. S~, SSN ~~) RA V (G~) to Director, Great Lakes Program Service Center, Chicago, December 8, 1977.