Question Presented
               You asked whether Claimant’s marriage to the number holder (NH) met the Social Security
                  Act’s (Act) 10-year duration requirement for surviving divorced spouse benefits?
               
               Short Answer
               No. Under Colorado law, the effective date of the divorce was May 24, 1982. Since
                  the marriage occurred on June 10, 1972, Claimant and the NH were not married for 10
                  years as required by the Act for surviving divorced spouse benefits.
               
               Background
               Claimant, Karen, married the NH, Byron, on June 10, 1972, in Minnesota. Claimant petitioned
                  for dissolution of marriage and, on May 24, 1982, claimant and the NH appeared before
                  a Colorado District Court having reached a settlement on all issues and asking the
                  court to approve the settlement. On August 26, 1982, the Colorado district court entered
                  a decree of dissolution of marriage “nunc pro tunc, May 24, 1982.” Before submitting
                  the form of order to the court, the attorneys for both Claimant and the NH signed
                  the document under the heading “APPROVED AS TO FORM.” The parties also submitted to
                  the court a written Stipulation and Agreement asking the court to enter an order consistent
                  with the events of May 24, 1982 “as approved by the court.”
               
               The NH died December 7, 2013, domiciled in Florida. On February 4, 2014, Claimant
                  filed for surviving divorced spouse benefits.
               
               The agency denied Claimant’s application for failure to meet the marriage duration
                  requirement. Claimant now seeks reconsideration. Her representative, attorney Douglas,
                  submitted a letter on Claimant’s behalf dated May 13, 2014, in which he contends that
                  Colorado courts would not strictly enforce the retroactive divorce decree but would
                  instead apply equitable principles.
               
               Discussion
               In addition to other requirements not at issue here, an individual may be entitled
                  to widow’s benefits if she is the surviving divorced wife of an individual who was
                  fully insured. Social Security Act § 202(e)(1), 42 U.S.C. § 402(e)(1). The Act defines
                  a surviving divorced wife to be “a woman divorced from an individual who has died,
                  but only if she had been married to the individual for a period of 10 years immediately
                  before the date the divorce became effective.” Social Security Act § 216(d)(2), 42
                  U.S.C. § 416(d)(2); 20 C.F.R. § 404.336.
               
               The agency looks to law of the state where the number holder had a permanent home
                  to determine a claimant’s marital relationship to the number holder. Social Security
                  Act § 216(h)(1), 42 U.S.C. § 416(h)(1); 20 C.F.R. §§ 404.344, 404.345. For surviving
                  divorced spouse benefits, the agency considers the marriage under the state law of
                  the number holder’s domicile state at the time of death. 20 C.F.R. § 404.336(a)(1).
                  The agency considers state law in determining both the validity and finality of a
                  divorce.  See Program Operations Manual System (POMS) GN 00305.170(A)(1) (“A divorce is valid if it was granted by the court in whose jurisdiction at
                  least one of the parties was domiciled at the time of the divorce.”), GN 00305.120(B)
                  (“Apply State law to determine whether a divorce is final.”); see also POMS GN 00305.165, Summaries of State Laws on Divorce and Remarriage.
               
               According to information you provided, the NH’s permanent home was in Florida at the
                  time of his death. Under Florida law, the validity of a marriage is determined by
                  the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Here, we have no reason to question
                  the validity of the Minnesota marriage. However, we must consider how Florida would
                  view the Colorado divorce in order to determine the duration of marriage. Florida
                  recognizes divorce judgments obtained in other states as required by the U.S. Constitution,
                  which provides that a state must give full faith and credit to the judicial proceedings
                  of another state. See U.S. Const. art. IV, § 1; see also Atwell v. Atwell, 730 So. 2d 858, 860 (Fla. Dist. Ct. App. 1999) (per curiam) (giving full faith and
                  credit to a nunc pro tunc California divorce even though nunc pro tunc divorces are
                  not permitted under Florida law). Thus, to determine the effective date of the dissolution,
                  we must look to Colorado law.
               
               Here, the terms of the dissolution decree appear consistent with Colorado law. [1] See POMS GN 00305.170(A)(1) (instructing to assume the validity of a divorce unless there
                  is a basis to doubt its validity). Under Colorado law, courts are permitted to enter
                  orders nunc pro tunc, “or now for then”; such orders “are normally for the purpose
                  of correcting an omission from the court records and are deemed to have retroactive
                  effect.” In re Estate of Becker, 32 P.3d 557, 559 (Colo. Ct. App. 2000) (citing Perdew v. Perdew, 64 P.2d 602 (Colo. 1936)), aff’d on other grounds sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002). Neither Colorado case law nor the Colorado Uniform Dissolution
                  of Marriage Act, see 14 Colo. Rev. Stat. § 14-10-101 to 133, discuss when it is appropriate to dissolve
                  marriages nunc pro tunc. [2] However, a review of Colorado case law shows that Colorado courts routinely enter
                  dissolution decrees effective nunc pro tunc and this practice is accepted without
                  comment by reviewing courts. See, e.g., In re Marriage of Leverett, 318 P.3d 31, 32 (Colo. Ct. App. 2012) (order nunc pro tunc to the date of the hearing);
                  see also In re Marriage of Schelp, 228 P.3d 151, 154 (Colo. 2010); In re Marriage of Powell, 220 P.3d 952, 954 (Colo. Ct. App. 2009).
               
                
               As the Colorado Court of Appeals has noted, “nunc pro tunc orders have been regularly enforced in Colorado.” In re Estate of Becker, 32 P.3d at 559 (citing In re Marriage of Rose, 574 P.2d 112 (Colo. Ct. App. 1977), where a nunc pro tunc decree of dissolution
                  of marriage served to deprive the surviving wife of a surviving spouse share of a
                  husband’s estate). [3] Because nunc pro tunc orders are “deemed to have retroactive effect,” May 24, 1982
                  is the effective date of the dissolution between Claimant and the NH under Colorado
                  law.[4] In re Estate of B~, 32 P.3d at 559; see also In re Marriage of L~, 89 P.3d 455, 459 (Colo. Ct. App. 2009) (relying on Estate of Becker and recognizing that “the retroactive dates for the nunc pro tunc orders in [prior
                  Colorado precedent] corresponded to dates on which events dispositive to the dissolution
                  rights actually occurred in court”). Moreover, Claimant either agreed to the nunc
                  pro tunc effective date of May 24, 1982, or at least had opportunity for advance notice
                  of that date on the decree since her divorce attorney approved the document as to
                  form before it was submitted to the court. She also personally signed a Stipulation
                  and Agreement indicating that it served as written memorialization of the agreement
                  approved by the court on May 24, 1982.
               
               We recognize that the agency is not always required to honor state court orders. [5] In this case, however, because the nunc pro tunc order is consistent with Colorado
                  state law, and presents no other basis for questioning its terms or validity, the
                  agency may honor it. Accordingly, Claimant’s marriage to the NH does not meet the
                  10-year duration requirement for divorced wife benefits. [6]
               CONCLUSION
               Florida, the NH’s domicile state, would give full faith and credit to Colorado law
                  in determining the effective date of a Colorado dissolution decree. Colorado law presumes
                  that nunc pro tunc orders have retroactive effect. The effective date of Claimant’s
                  divorce is, therefore, May 24, 1982. Thus, Claimant was not married to the NH for
                  10 years, as required by the Act for entitlement to divorced spouse benefits.
               
               John Jay Lee 
Regional Chief Counsel Region VIII 
 By: ____________
               
               David Blower
               Assistant Regional Counsel