Effective Dates: 04/14/2016 - Present Previous | Next

TN 9 (04-16)

PR 05110.040 Oklahoma

A. PR 16-070 Status of NH's First Marriage for Subsequent Spouse's Entitlement-OK

DATE: January 26, 2016

1. Syllabus

The NH was domiciled in Oklahoma at the time of her death, therefore, we look to the Oklahoma Law to determine the validity of the NH’s marriage to the Claimant. Oklahoma law presumes the validity of the last marriage, such that earlier marriages are presumed to have ended in divorce or death absent evidence to the contrary. In this case, the NH and the ex- spouse were divorced in September 1984. Based on that evidence the Claimant submitted, we believe the Oklahoma law would recognize that the prior marriage between the NH and the ex-spouse ended in divorce.

The NH and ex-spouse were not married at the time of the NH’s death. The Claimant and the NH did not file for divorce and there is no evidence that counters the presumed validity of the marriage between the NH and the Claimant. The evidence submitted by the Claimant satisfies the marital relationship requirement to qualify as the NH’s widower under the Act.

2. Opinion

QUESTIONS PRESENTED

For purposes of V~’s application for widower’s benefits on the number holder L~’s (NH’s) account, you asked whether a Choctaw County, Oklahoma, District Court (District Court) docket entry noting the grant of a decree of divorce terminated the NH’s prior marriage to W~. You also asked whether V~’s later marriage to the NH was valid and whether W~ or V~ was the NH’s widower under Oklahoma law.[1]

 

Short Answer

We conclude Oklahoma law presumes the validity of the NH’s last marriage to V~. The District Court’s docket entry noting the court granted a decree of divorce in September 1984 terminated the marriage between the NH and W~. While the District Court’s docket entry also notes an Order to Dismiss Case in July 1989, the Court has no further documentation explaining the Order. We conclude the District Court lacked power to issue such an Order on its own almost five years after granting the decree of divorce. Thus, we find insufficient evidence to rebut the presumption of validity of the NH’s marriage to V~. V~ is the NH’s legal widower under Oklahoma law.

Background

The NH died on December XX, 2014. She was domiciled in Oklahoma at the time of her death. On May XX, 2015, V~ filed an application for widower’s benefits on the NH’s account, stating he was married to the NH although they had separated in July 2013.[2] V~ stated neither he nor the NH filed for divorce.

In developing V~’s widower’s benefits application, agency notes indicated that the agency learned the NH’s death certificate stated she was divorced.[3] The agency contacted the NH’s mother for clarification. The NH’s mother stated the NH filed a petition for divorce from V~ in the District Court. However, the NH’s mother stated the NH did not further pursue the divorce from V~ because she found out that her divorce from an earlier marriage to W~ had never been filed. The NH’s mother suggested the divorce lawyer never filed the divorce because the NH never paid her lawyer.

The agency contacted the District Court’s office for clarification on the NH’s divorce from V~ and from W~. Agency notes show that the District Court clerk’s (clerk) statements to the agency changed over time. Initially, the clerk stated she found a divorce between the NH and V~. Later, the clerk clarified she found only a petition and summons for divorce between the NH and V~, but no entry of a final divorce.[4] The District Court clerk advised the agency that she could not find the file for the NH’s and W~’s earlier divorce. However, the District Court clerk provided the agency with a copy of its docket sheet showing the NH filed a petition for divorce from W~ in April 1984, and that the Court granted a decree of divorce in September 1984 on grounds of incompatibility following a hearing both the NH and W~ attended. The District Court’s docket sheet indicated almost five years later, in July 1989, that an “Order to Dismiss Case” was filed. The clerk stated she was uncertain what the docket sheet notes meant

The agency contacted W~, who stated he and the NH were divorced, although he did not have a copy of the divorce decree. W~ stated he never asked the District Court to set aside the divorce, and he denied receiving any notice from the court that the divorce had been set aside. W~ later told the agency he contacted an attorney and showed the attorney the District Court docket sheet entries. W~ stated the attorney advised him under Oklahoma law a divorce can only be set aside within 30 days of entry, and the District Court could not have set aside or dismissed the case almost five years after entering the divorce. Thus, we assume W~’s position is that he is divorced from the NH and was not her legal widower upon her death.

Analysis

1. Entitlement to Widower’s Benefits Under the Social Security Act

A claimant is entitled to widower’s benefits under Title II of the Social Security Act (Act) if, among other things, he is the widower (widower or surviving husband) of an individual who was full insured when she died.[5] See 42 U.S.C. §§ 402(f), 416(g); 20 C.F.R. § 404.335. For a claimant to establish he is the widower, the claimant bears the burden of proving the requisite marital relationship with the insured at the time she died. See 20 C.F.R §§ 404.335, 404.344, 404.345, 404.346, 404.704, 404.723, 404.725, 404.726, 404.727. The agency will determine whether an applicant is an insured individual’s widower by determining if the courts of the state in which the insured individual was domiciled at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died.[6] See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Thus, in determining the claimant’s relationship as the insured’s widower, the agency looks to the law of the state where the insured had a permanent home at the time she died. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the individual insured’s true and fixed home or legal domicile. 20 C.F.R. § 404.303. Because the NH was domiciled in Oklahoma at the time she died, we look to Oklahoma law to determine whether the NH and V~ were validly married.

2. Under Oklahoma Law, the Marriage Between the NH and V~ Is Presumed Valid

As noted, your legal opinion request focuses upon whether the NH’s prior marriage with W~ terminated before the NH’s subsequent marriage to V~. Under Oklahoma law, parties entering into a marriage must be single, and a marriage in which any party is still validly married to another is a void marriage. Okla. Stat. Ann. tit. 43, § 3(A); see Whitney v. Whitney, 134 P.2d 357, 359 (Okla. 1942). Thus, it is our understanding that your primary concern is whether the NH’s marriage to V~ was void because she was still validly married to W~.[7]

We begin our analysis by recognizing that Oklahoma law presumes the validity of the last marriage, such that earlier marriages are presumed to have ended in divorce or death absent evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffield, 357 P.2d 434, 437 (Okla. 1960). The presumption increases in strength with the passage of time, recognition and acknowledgment of the marriage, and the birth of children. See Marcum, 406 P.2d at 973; Norton, 357 P.2d at 437. The presumption of the validity of the latest marriage is strong, but may be rebutted by the person asserting the invalidity of the latest marriage. See Marcum, 406 P.2d at 974; Norton, 357 P.2d at 437. The strength of the evidence needed to rebut the presumption depends on the equitable strength of the evidence establishing the last marriage. See Smith v. Barnhart, 2003 WL 893578 at *4 (10th Cir. 2003) (unpublished) (“Oklahoma courts have been somewhat inconsistent in assessing the burden of proof against the party attacking the marriage,” but “[t]he consistent rational underlying these different applications, however, is that the presumption is rebuttable, and the strength of the rebuttal evidence must mirror the apparent strength of the validity of the marriage.”). The evidence required to rebut the presumption may be as low as “some, competent evidence sufficient to eliminate the presumption” (see Puntka v. Puntka, 50 P.2d 1092, 1093 (Okla. 1935)) and as high as “clear, strong, and unequivocal” evidence (see Norton, 357 P.2d at 439). See id.

As noted, there is little evidence addressing the NH’s latest marriage to V~ from which we could analyze the equitable strength of the evidence establishing the marriage. We do not know the length of the marriage, whether any children were born of the marriage, or whether the community generally recognized the marriage.[8] Nevertheless, we can provide an opinion in this case without further development. If V~ was the last individual married to the NH, there must, at a minimum, be some competent evidence to counter the presumption of that marriage’s validity, such as evidence that the NH and W~ never divorced, which would make the NH’s marriage to V~ void. Therefore, we next look to whether the NH and W~ validly divorced.

3. Under Oklahoma Law, a Divorce Decree Is Valid When Pronounced

We first consider whether the District Court docket sheet establishes that the NH and W~ were divorced. Under Oklahoma law, a parties’ divorce is final on the date the divorce is pronounced. See Alexander v. Alexander, 357 P.3d 481, 485 (Okla. 2015) (“The dissolution of the marriage was effective when pronounced by the trial court, but would not have been appealable unless it had been properly filed.”); Bryan v. Bryan, 221 P.3d 146, 150 (Okla. Civ. App. 2009) (“the parties’ divorce was valid and final” on the “date the trial court announced its ruling and entered its minute order”); Okla. Stat. Ann. tit. 43, § 127 (time when judgments in divorce actions become final; effect of appeal); Okla. Stat. Ann. tit. 12, § 696.2(E) (“A judgment, decree or appealable order, whether interlocutory or final, shall not be enforceable in whole or in part unless or until it is signed by the court and filed; except that the adjudication of any issue shall be enforceable when pronounced by the court in the following actions,” including “divorce”). Further, a divorce judgment is rendered when pronounced, and the failure to enter a written memorial of the judgment does not invalidate the judgment. See Pellow v. Pellow, 714 P.2d 593, 595 (Okla. 1986); see also Alexander, 357 P.3d at 484 (“This Court has long held that ‘entry of the written memorial upon the court’s journal is not essential to the validity of the judgment, and failure to properly file a journal entry of judgment does not render judgment void.’”) (citing Pellow, 714 P.2d at 595). In Pellow, the Oklahoma Supreme Court held that a divorce was granted on the date the district court entered a minute order in the docket sheet stating, “divorce granted to both parties all as per journal entry.” Id. at 595, 597.

Here, the District Court’s docket sheet shows the NH filed a petition for divorce from W~ in April 1984, and the District Court granted a decree of divorce in September 1984 following a hearing both the NH and W~ attended. The docket sheet states, “Decree of Divorce Granted on Grounds of Incompatibility.” Because the District Court was unable to locate the case file, we do not know whether any other written memorial of the divorce decree existed. However, the minute order on the docket is sufficient evidence to establish that the NH and W~ were divorced in September 1984, with no other written memorial required. See Pellow, 714 P.2d at 595, 597. As noted, we find it further significant that W~’s position is that he validly divorced the NH.

The agency should accept the District Court’s minute order as evidence establishing the divorce between the NH and W~. Agency policy states that a state trial court decision does not bind the Commissioner when the agency is not a party. See Social Security Ruling (SSR) 83-37C, 1983 WL 31272 (adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973)). However, the Commissioner must still recognize a state court adjudication where all of the following prerequisites (prongs) are found: (1) a state court of competent jurisdiction has determined an issue in a claim for Social Security benefits; (2) parties with opposing interests genuinely contested the issue before the state court; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Id. Admittedly, there is very little evidence addressing the four prongs under Gray, but it appears all four prongs are sufficiently satisfied in this case such that the agency should recognize the decree of divorce.

First, a district court in Oklahoma has subject-matter jurisdiction to hear divorce case (Okla. Stat. Ann. tit. 43, § 101), and the decree of divorce between the NH and W~ impacts V~’s Social Security benefit eligibility as the NH’s legal widower. Second, both the NH and W~ appeared in the case as opposing parties. Third, divorce proceedings are in the general category of domestic relations law. See Okla. Stat. Ann. tit. 43, §§ 101-140; see also Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun concurring) (“‘first’ or ‘core,’ category [of domestic relations] involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity”). Fourth, incompatibility is a proper grounds for divorce under Oklahoma law. See Okla. Stat. Ann. tit. 43, § 101. Thus, applying Gray, the agency should recognize the District Court’s September 1984 divorce decree between the NH and W~.

4. Under Oklahoma Law, the District Court Did Not Have Power to Dismiss the Divorce

Next, we consider whether the District Court’s notation in July 1989, “File Order to Dismiss Case” properly set aside the divorce decree. Under Oklahoma law, a divorce decree may be appealed, vacated, or set aside. See Okla. Stat. Ann. tit. 12, §§ 990A, 1031; Okla. Stat. Ann. tit. 43, § 133. Final judgments from a district court may be appealed to the Oklahoma Supreme Court, but any such appeal must be commenced within thirty days from the date of the judgment.[9] Okla. Stat. Ann. tit. 12, §§ 952(b), 990A. A party may also file a petition in the district court to vacate a divorce decree. Okla. Stat. Ann. tit. 12, § 1031. Generally, the petition must be filed within thirty days of the judgment. Okla. Stat. Ann. tit. 12, § 1031.1. If more than thirty days has passed, the party must file a petition, verified by affidavit, setting forth the judgment, the grounds to vacate or modify it, and the defenses to the action. Okla. Stat. Ann. tit. 12, § 1033. The party must then serve a summons as in the initial commencement of a civil action. Id. Finally, a district court can set aside its divorce decree at any time. Okla. Stat. Ann. tit. 43, § 133. However, the district court may only set aside its divorce decree on petition of both parties, signed by both parties, asking the court to set aside the divorce. Id. Further, the parties must prove to the court that neither one married a third-party during the time since the court issued the decree of divorce. Id.

The District Court’s docket sheet does not support any of these means of appealing, vacating, or setting aside the divorce decree. Indeed, the docket sheet does not indicate that the NH or W~ took any steps to appeal the divorce decree, such as individually petitioning the District Court to vacate the divorce decree, or jointly petitioning the District Court to set aside the divorce decree. There are no docket entries at all between the September 1984 docket entry granting the divorce decree and the July 1989 docket entry purporting to dismiss the case. The evidence provided does not explain the effects of the court’s apparent order entered five years after the divorce decree. Not even the District Court clerk was able to explain what this final docket sheet entry meant. However, W~ stated he never had the divorce set aside and never received any notice from the District Court that the divorce was set aside. Although the NH’s mother seems to suggest the divorce was set aside because the NH did not pay her attorney,[10] we find no legal authority that would grant a district court the power to dismiss on its own a decree of divorce without notice to the parties. Neither the NH nor W~ suggested she or he filed a petition to set aside the divorce decree. Thus, we do not believe that the docket entry of an Order to Dismiss the Case made in 1989 properly set aside the divorce decree the District Court previously entered five years before, in 1984. Even if we considered the District Court’s docket entry as evidence the court set aside the divorce decree, we would not be required to recognize the Court’s adjudication because under the fourth Gray prong it is inconsistent with Oklahoma law, as discussed above.

For these reasons, we conclude the District Court did not validly dismiss the divorce decree. Under Oklahoma law, the NH and W~ were divorced in September 1984, and no evidence counters the presumed validity of the marriage between the NH and V~.[11] Because there is no evidence that the marriage between the NH and V~ ended in divorce, V~ qualifies as the NH’s widower.

Conclusion

We believe Oklahoma law would recognize that the prior marriage between the NH and W~ ended in divorce. Therefore, the NH’s subsequent marriage to V~ is not void on the basis that she was married to W~ at the time of her marriage to V~, which we understand to be the primary focus of this legal opinion request. Under Oklahoma law, there is insufficient evidence to rebut the presumption of the validity of the marriage between the NH and V~. Consequently, assuming the agency has sufficient evidence as to V~’s marriage with the NH, V~ satisfies the marital relationship requirement to qualify as the NH’s widower under the Act. See 42 U.S.C. § 416(f), (g), (h)(1)(A)(i); 20 C.F.R. §§ 404.335, 404.345; see also 20 C.F.R. §§ 404.723 (if you apply for widower’s benefits, we will ask you for evidence of the marriage and where and when it took place), 404.725 (evidence of a valid ceremonial marriage), 404.726 (evidence of a valid common law marriage).

Michael McGaughran

Regional Chief Counsel

By: James D. Sides

Assistant Regional Counsel

 

Footnotes:

[1]

This legal opinion request does not contain information regarding the NH’s and V~’s marriage, including the date of their marriage, but focuses instead upon evidence of termination of the NH’s first marriage with W~ and subsequent marriage with V~. Thus, we assume the agency is satisfied that for purposes of V~’s application for widower’s benefits there is sufficient evidence to establish a valid marriage between the NH and V~, and that the marriage occurred after the NH’s marriage and divorce from W~. See 20 C.F.R. §§ 404.723 (if you apply for widower’s benefits, we will ask you for evidence of the marriage and where and when it took place), 404.725 (evidence of a valid ceremonial marriage), 404.726 (evidence of a valid common law marriage). Therefore, our analysis of who is the NH’s legal widow focuses upon evidence of termination of the NH’s two marriages, and specifically, upon whether the NH’s first marriage to W~ validly terminated prior to the NH’s subsequent marriage to V~.

[2]

As noted above, the evidence provided contains no information regarding the NH’s and V~’s marriage. We assume for purposes of this opinion you are satisfied that the evidence establishes a marriage between the NH and V~ and the marriage occurred after the NH’s marriage to W~. We focus upon whether the evidence establishes that the NH and W~’s marriage validly terminated by divorce prior to the NH’s subsequent marriage to V~.

[3]

It is our understanding that a funeral home employee told the agency that the NH’s death certificate indicated she was divorced, but we do not have the NH’s death certificate and are unable to confirm this statement.

[4]

The evidence does not contain a docket sheet indicating there was a petition for divorce filed between the NH and V~.

[5]

To be eligible for widower’s benefits, the claimant must also generally show he: (1) was either married to the insured individual for at least nine months immediately prior to her death, subject to various exceptions, or he and the insured individual were natural parents of a child, one adopted the other’s child, or they together adopted a child under the age of 18; (2) filed an application for widower’s benefits, subject to various exception; (3) was at least 60 years old or at least 50 years old and had a disability; (4) was not entitled to an old-age benefit equal to or larger than the insured’s primary insurance amount; and (5) was unmarried, subject to various exception. See 42 U.S.C. §§ 402(f); 416(g); 20 C.F.R. § 404.335. You have advised us V~ filed an application for widower’s benefits, and, thus, he satisfies the second requirement. There is no information or evidence provided addressing the other four requirements, and you have not asked for our opinion on whether these requirements are met here. As such, we do not offer any opinion as to whether V~ satisfies each of these requirements and instead focus upon whether he was in a valid marital relationship with the NH at the time she died.

[6]

The relationship requirement will also be met if under state law, a claimant is entitled to inherit a spouse’s share of the insured’s personal property if she were to die intestate. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345, see also Program Operations Manual System (POMS) 00305.005(A) (in determining whether a claimant qualifies as a spouse under the Act, consider all of the following types of marriages: valid ceremonial or common-law marriage; invalid marriage that permits a spouse to inherit under state intestate personal property, e.g. putative; custom marriage; or deemed marriage), GN 00305.085 (under the laws of some states, a party to a void marriage may acquire inheritance rights as a spouse; this relationship under state laws is called a putative marriage, which is distinct from the federal deemed marriage provision). We have located no statute or case law indicating that Oklahoma grants inheritance rights to putative spouses. Rather, Oklahoma strictly applies statutory descent provisions and does not apply equitable considerations in determining inheritance rights. See United States v. McCarty, 144 F.2d 341, 342 (10th Cir. 1944); Cox v. Cox, 217 P. 493, 495 (Okla. 1923). Therefore, in order to meet the relationship requirement under the state law provision of the Act, V~ must prove a valid marriage with the NH under Oklahoma law. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345.

[7]

As noted in the background section, there is some indication that the NH filed a petition for divorce from V~, but that she ultimately did not pursue the divorce. Thus, there is no evidence or claim of a valid divorce between the NH and V~.

[8]

It is also not entirely clear who is challenging the validity of the NH’s and V~’s marriage, as W~ unequivocally asserts he and the NH were divorced, V~ unequivocally asserts he and the NH were still married, and the NH is deceased. We will assume the agency is challenging the validity of the marriage in its role of developing the record and protecting the trust fund.

[9]

Although the District Court’s decision is immediately enforceable when pronounced, the 30-day filing period for filing an appeal in a divorce case does not start until the decree or journal entry was prepared and filed with the court clerk. See Alexander, 357 P.3d at 485 (“The dissolution of the marriage was effective when pronounced by the trial court, but would not have been appealable unless it had been properly filed.”); Okla. Stat. Ann. tit. 12, §§ 696.2(E), 990A(A). Because the District Court could not locate the file for the divorce case between the NH and W~, it is not clear when the decree or journal entry was prepared and filed with the court clerk. However, there is no evidence suggesting that the NH or W~ ever appealed the divorce decree.

[10]

The statement from the NH’s mother that the NH was divorced at the time of her death also seems to contradict a suggestion the NH believed she remained married to W~ at the time of her death.

[11]

We recognize that under Oklahoma law a party’s actions may estop him or her from attacking or asserting the validity of a marriage. See e.g. Brokeshoulder v. Brokeshoulder, 204 P. 284 (Okla. 1922). The evidence provided does not give grounds for concluding any party would be estopped from attacking or asserting the validity of the NH’s marriage to V~. Thus, we considered all available arguments in this opinion.

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PR 05110.040 - Oklahoma - 04/14/2016
Batch run: 04/15/2016
Rev:04/14/2016