TN 3 (12-10)

PR 06315.005 Arkansas

A. PR 11-014 Whether a Decree of Annulment Renders a Marriage Void or Voidable Under Arkansas Law – NH Charles R. B~ - Reply

DATE: November 15, 2010

1. SYLLABUS

The laws of the state of Arkansas treat a marriage that a court annuls for failure of consent by virtue of a want of understanding as a voidable marriage.

2. OPINION

You have requested an opinion regarding whether a decree of annulment renders Tappy M~’s marriage to Scott R. B~ void or voidable under Arkansas law. If Ms. M~’s marriage to Mr. B~ were void under Arkansas law, the agency would consider Ms. M~ never to have married, and the agency would reinstate her disabled adult child’s insurance benefits 1 (child’s insurance benefits) from the date the agency terminated her child’s insurance benefits. If Ms. M~’s marriage to Mr. B~ was voidable under Arkansas law, her child’s insurance benefits would end one month before the month she married Mr. B~. If a court annuls the voidable marriage, however, agency policy permits reentitlement to child’s insurance benefits the first full month the agency considers the claimant to be no longer married. After reviewing the facts and the relevant law, it is our opinion that Ms. M~’s marriage to Mr. B~ was voidable under Arkansas law. In our opinion, therefore, Ms. M~’s entitlement to child’s insurance benefits ended effective September 1991, the month before the month Ms. M~ married Mr. B~. The agency, however, may reinstate her child’s insurance benefits as of December 1991, the first full month the agency considers her to have been no longer married.

As we understand the facts, Charles R. B~, the number holder (NH), has been receiving Title II disability benefits as a resident of Arkansas since May 1979. Ms. M~, the NH’s daughter, was born on January 12, 1971. Ms. M~ received child’s insurance benefits on the NH’s record from May 1979 through January 1989, when she reached age 18. Ms. M~ applied for and became entitled to Title II disability benefits on her own record in February 1990. At that time, the agency did not consider Ms. M~’s potential benefits as a disabled adult child on the NH’s record. The agency, however, subsequently established Ms. M~’s entitlement to child’s insurance benefits as a disabled adult on the NH’s record, with an effective date of May 1989.

In October 1989, Ms. M~ married Robin D~. The agency did not consider Ms. M~’s marriage to Mr. D~ a terminating event for purposes of child’s insurance benefits because Mr. D~ was a Title II disability beneficiary 2 Ms. M~ and Mr. D~ divorced in March 1991. In October 1991, Ms. M~ married Mr. B~.3 In November 1991, the Chancery Court of Mississippi County, Arkansas, annulled the marriage between Ms. M~ and Mr. B~ on grounds that Ms. M~ was incapable of consenting to the marriage for want of understanding.

Under section 202(d)(1) of the Social Security Act, a child of a worker may become entitled to child’s insurance benefits if, among other conditions, the child is unmarried. See 42 U.S.C. 402(d)(1); 20 C.F.R. §§ 404.350(a), 404.352(b)(2). “[A] person who is entitled to child’s insurance benefits and whose entitlement is terminated because of marriage . . . may not be reentitled to those benefits when the marriage ends by divorce.” Social Security Ruling (SSR) 84-1, 1984 WL 49790, *1 (SSA). However, “[i]f a voidable marriage is annulled by court action . . . reentitlement to child’s . . . benefits is ordinarily permitted . . . no earlier than the month in which the marriage is annulled,” so long as the annulling court does not award or retain jurisdiction to award permanent alimony. Id. Thus, for individuals whose entitlement to child’s insurance benefits ended due to marriage and whose marriage ended by annulment, the date of reentitlement to child’s insurance benefits depends upon whether the marriage was void or voidable.4

If a child who is entitled to child’s insurance benefits on a parent’s record marries and late divorces, the agency must determine whether the child is reentitled to receive benefits. If the agency considers a child’s marriage void under applicable state law, the agency considers the child never to have married, and she will be reentitled to child’s insurance benefits as of the date the agency first terminated her benefits. SSR 84-1, 1984 WL 49790, *1 (SSA). If, on the other hand, the agency considers the child’s marriage voidable under applicable state law and a court annuls the marriage, the child may be reentitled to benefits as of the date of the first full month the agency considered her to be no longer married. Id.; see e.g., 20 C.F.R. § 404.620(a)(1) (Social Security regulations provide that a claimant who files an application for benefits before the first month she meets the requirements for entitlement may receive benefits from the first month she meets all the requirements).

In this case, Arkansas law controls because Ms. M~ resided in Arkansas at all relevant times. See Ark. Code Ann. § 9-12-202 (proceedings for annulment shall be by equitable proceedings in the county where the complainant resides). In her November 1991 Petition for Annulment from Mr. B~, Ms. M~ alleged that she was incapable of consenting to the marriage for want of understanding. Tappy J. B~ vs. Scott R. B~, Chancery Court of Mississippi County, Arkansas, Case No. E-91-631. On November 15, 1991, the Arkansas Chancery Court ordered that the marriage between Ms. M~ and Mr. B~ be “set aside and held for naught and annulled.” Id. The Arkansas Chancery Court did not award or retain jurisdiction to award permanent alimony in this case.5 Id.

You asked whether the November 1991 decree of annulment rendered Ms. M~’s marriage to Mr. B~ void or voidable under Arkansas law. Arkansas law provides that when a party “to a marriage is incapable from want of age or understanding of consenting to any marriage . . . the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.” See Ark. Code Ann. § 9-12-201. The word “void” in section 9-12-201 means “voidable.” See Vance v. Hinch, 261 S.W.2d 412, 497(1953) (under statute providing that marriage of person unable to consent to marriage for want of understanding is void from the time a court declares its nullity, a reasonable interpretation of that statute is that such marriage is voidable and not void). Thus, Arkansas treats a marriage that a court annuls for want of understanding, like the situation in the instant case, as a voidable marriage.

In conclusion, Ms. M~ married Mr. B~ in October 1991, and the Arkansas Chancery Court annulled the marriage in November 1991. The marriage between Ms. M~ and Mr. B~ was voidable because the laws of the state of Arkansas treat a marriage that a court annuls for failure of consent by virtue of a want of understanding as a voidable marriage. Thus, Ms. M~’s entitlement to child’s insurance benefits ended in September 1991, the month before Ms. M~ married Mr. B~. The agency may reinstate her child’s insurance benefits in December 1991, the first full month the agency considers her to be no longer married.

Michael M~
Regional Chief Counsel
By: ___________
Ruben M~
Assistant Regional Counsel


Footnotes:

[1]

A disabled adult may be entitled to child’s insurance benefits on the earnings record of an insured person if, among other things, the disabled adult is 18 years old or older and has a disability that began before age 22. 20 C.F.R. § 404.350(a)(5).

[2]

The agency will find a claimant’s entitlement to child insurance benefits ends the month before the month the claimant marries. 20 C.F.R. § 404.352(b)(4). The agency will not find that the claimant’s entitlement to child’s insurance benefits ends, however, if the claimant marries a person entitled to disability benefits. Id.

[3]

The request for a legal opinion regarding whether Ms. M~’s marriage to Mr. B~ was void or voidable under Arkansas law, for purposes of determining termination of child’s insurance benefits, suggests that Mr. B~ was not entitled to Title II benefits.

[4]

A void marriage is one that has no legal force or binding effect, and its invalidity may be maintained in any proceedings between any parties. Black’s Law Dictionary, 987 (Rev. 7th Ed. 1999). A voidable marriage is valid for all civil purposes until annulled in direct proceedings. Id.

[5]

Although the decree of annulment is silent regarding alimony, the Arkansas Supreme Court has held that where a wife sought to obtain alimony after she did not seek alimony in the original proceedings, the decree was res judicata as to everything which might have been litigated when the divorce was granted. Boyles v. Boyles, 594 S.W.2d 17, 21 (1980). Thus, the court essentially did not retain jurisdiction to award alimony.


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PR 06315.005 - Arkansas - 12/07/2010
Batch run: 12/07/2010
Rev:12/07/2010