TN 1 (10-07)
PR 06310.016 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 07-213 MOS-Illinois: Annulment of a Void Marriage SSN: ~ Number Holder: James R. L~ Claimant: Sharon R. L~ SSN: ~ Your Reference: S2D5G6, (James R. L~) Our Reference: 07-0326
DATE: September 7, 2007
Under Illinois law where marriage is void because of prior husband or wife living and undivorced, no decree is necessary to void the marriage, since the marriage is a nullity.
Sharon R. L~ has applied for widow's benefits on the record of her first husband, James R. L~. You asked us whether Illinois law required Sharon to obtain a decree annulling her second marriage to Jeffery C~. For the reasons discussed below, we conclude that such a decree is not necessary because that marriage was void.
Sharon R. L~ married James R. L~ on October 7, 1967. The marriage ended on April 10, 1972, when James died.
Sharon later married Jeffrey C~ on August 19, 1994. The marriage occurred in Indiana, but both Sharon and Jeffrey were, and continue to be, residents of Illinois. At some point, Sharon discovered that Jeffrey had a prior, undissolved marriage, and she eventually left him in June 2006. Records show that Jeffrey married Renee P~ on March 26, 1973, and divorced her on October 3, 2006. Sharon has not filed for divorce from Jeffrey, arguing that the marriage was void from the beginning and she lacks the money to hire an attorney. On May 8, 2007, Sharon filed for widow's benefits on James's account.
In order for Sharon to be entitled to widow's benefits on James's account, she must be unmarried. 20 C.F.R. § 404.335. While she later married Jeffrey, this marriage was void. "A void marriage is a marriage which is legally nonexistent from the beginning under State law, with or without a judicial decree. The parties to a void marriage are considered never to have been husband and wife." POMS GN 00305.125(A). Under Illinois law, Sharon's marriage to Jeffrey was a void marriage. See 750 ILCS 5/212(a)(1) ("a marriage entered into prior to the dissolution of an earlier marriage of one of the parties" is considered "prohibited."); Shmisseur v. Beatrie, 35 N.E. 525 (Ill. 1893) (A second marriage is void where either of the parties to it has a husband or wife by a former marriage who has never been divorced and is still living); Hunt v. Hunt, 252 Ill.App. 490 (Ill. App. Ct. 1929).
Moreover, Illinois does not require Sharon to obtain an annulment decree because her marriage to Jeffrey was a nullity. See Cartwright v. McGown, 12 N.E. 737 (Ill. 1887) (where marriage is void because of prior husband or wife living and undivorced, no decree is necessary to void the marriage, since the marriage is a nullity); In re Estate of Crockett, 728 N.E.2d 765, 768 (Ill. App. Ct. 2000) (A void marriage is ineffectual to alter the marital status of either party; no judicial proceeding or decrees are required to establish its invalidity) (citation omitted). Thus, Sharon's marriage to Jeffrey is void, even without an annulment decree, and she should be considered unmarried.
In sum, Sharon's marriage to Jeffrey was void, and a decree annulling the marriage is not necessary.
Donna L. C~
Regional Chief Counsel, Region
Assistant Regional Counsel