The claimant’s marriage to the number holder is valid and the Order setting aside the divorce decree does not have any legal effect on the beneficiary’s divorce from a third party. The judge’s Order does not affect the validity of the claimant’s marriage to the number holder for determining the claimant’s entitlement to WIB on the number holder’s account. The presumption of the validity of claimant’s marriage to NH was not overcome, and the claimant and NH were validly married when NH died for determining claimant’s entitlement to WIB on NH’s account.

QUESTION

You asked whether an Order from a Georgia judge purporting to set aside a beneficiary’s divorce from a third party causes the divorce decree to be invalid and, if so, whether the Social Security Administration (SSA) should reopen its decision to award the beneficiary widow’s insurance benefits (WIB) based on her subsequent marriage to the number holder.

OPINION

The beneficiary’s marriage to the number holder is valid and the Order setting aside the divorce decree does not have any legal effect on the beneficiary’s divorce from a third party. Thus, the judge’s Order does not affect the validity of the beneficiary’s marriage to the number holder for determining the beneficiary’s entitlement to WIB on the number holder’s account.

BACKGROUND

According to the information provided, A~ (Beneficiary) married T~ in 1983 in Nevada. On May XX, 1998, Judge Robert G. Johnston, III, of the Superior Court for the County of Muscogee, Georgia, issued a Final Judgment and Decree of Divorce between T~ and Beneficiary. Beneficiary married W~, III, the number holder (NH), in Russell County, Alabama, on May XX, 2007.

A death certificate shows that NH died in September 2012 in Columbus, Georgia.^[1] Beneficiary applied for WIB on NH’s account on October XX, 2012. The application states that NH married Beneficiary on May XX, 2007 in Alabama by a clergyman or public official and that the marriage ended by death on September XX, 2012 in Georgia. SSA found Beneficiary entitled to WIB on NH’s account as of September 2012.

Beneficiary’s file contains a handwritten Order from Judge Johnston, dated February XX, 2009, purporting to set aside a divorce decree. The Order does not indicate who requested that the court set aside the divorce decree or the parties to the divorce decree that is being set aside. The Order does not indicate that it pertains to the divorce decree between Beneficiary and T~, other than a case number written on the top right hand corner of the document that is not in the Judge’s handwriting. The Order states:

After having heard from the defendant in open court complaining that notice was given by publication when plaintiff actually knew where she lived and further that plaintiff was not a resident of Muscogee County six months prior to filing petition for divorce-Their divorce is hereby set aside and declared a nullity-

So Ordered.

R Johnston

(over)

[Page 2]

Those were the contentions of the defendant[.] However the Clerk shortly after the hearing pointed out to the court that she signed for a certified letter and the plaintiff was a resident for six months. The Court nullifies the divorce on the grounds of simple due process + nothing else.

The Judge added the second page of reasoning after writing “So Ordered” and signing the Order. The second page does not include the words “So Ordered” and is not signed.

Information in the Beneficiary’s claim file indicates that almost two years after the date of the Order, Beneficiary identified herself as married, and referred to an earlier divorce in Georgia. She also referred to NH as her husband on a June 2011 function report. Beneficiary reported on the same function report that she had no financial support since December 2009 and that she received no funds from her husband (NH). She reported she was living with her parents.

DISCUSSION

An individual may be entitled to WIB if she is the widow of an individual who died fully insuredSee Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2015).^[2] An individual may qualify as the widow of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find they were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. NH’s death certificate indicates he was a resident of Georgia when he died. Therefore, we look to Georgia law to determine whether the Order purportedly setting aside Beneficiary’s divorce from T~ affects the validity of her marriage to NH and her entitlement to WIB on NH’s account.

Presumption of Validity of Second Marriage

Under Georgia law, the essentials of a valid marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. See Ga. Code Ann. § 19-3-1 (West 2015). With respect to the parties’ ability to contract, Georgia law states that a person must “[h]ave no living spouse of a previous undissolved marriage. The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Ga. Code Ann. § 19-3-2(a)(3) (West 2015). Any previous undissolved marriage renders void an attempted second marriage. Lovette v. Zeigler, 160 S.E.2d 360, 361-62 (Ga. 1968). Where a party to a marriage has been previously married and the validity of the second marriage is challenged, the presumption is that the second marriage is valid until evidence establishes that the other spouse of the first marriage was living at the time of the second marriage and, if that is established, the burden shifts to the party contending the validity of the second marriage to show the first was dissolved by divorce or death. Hayes v. Schweiker, 575 F. Supp. 402, 404 (N.D. Ga. 1983) (quoting Johnson v. Johnson, 238 S.E.2d 437, 437 (Ga. 1977)). “There must be plenary proof that neither party to the previous marriage had obtained divorce, by failing to find any record of divorce in any counties of the jurisdiction where it should have been granted.” Azar v. Thomas, 57 S.E.2d 821, 822 (Ga. 1950). The presumption of the dissolution of the previous marriage grows stronger with the passage of time where the second marriage is not questioned or attacked. Id.

Beneficiary’s marriage to T~ was dissolved by divorce in 1998. Thus, the presumption of the validity of Beneficiary’s marriage to NH is not overcome because, at the time the marriage was entered into in May 2007, Beneficiary was not party to an undissolved marriage. Further, the Judge’s February 2009 Order purportedly setting aside the divorce decree on due process grounds cannot rebut the presumption that Beneficiary's marriage to NH was valid at the time it was contracted. In fact, Beneficiary continued to assert the validity of her marriage to NH after the Judge’s Order. Almost two years after the date of the Order, Beneficiary identified herself as married, and referred to an earlier divorce in Georgia. She also referred to NH as her husband on a June 2011 function report. In June 2011, Plaintiff told staff at East Alabama Mental Health that she was afraid her sister-in-law was going to ask for a divorce on behalf of her and her husband. Thus, it is clear that even after the divorce between Beneficiary and T~ was allegedly set aside, she still represented and believed herself to be married to NH. The information provided does not overcome the presumption of the validity of Beneficiary’s marriage to NH. Therefore, Beneficiary and NH were validly married when he died for purposes of determining her entitlement to WIB on NH’s account.

Validity of Order Setting Aside Divorce

Moreover, SSA is not bound by the Order purporting to set aside Beneficiary’s divorce from T~. SSA cannot ignore an adjudication of a State court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (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. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). One might well question whether opposing parties genuinely contested the issue of the set aside before the state court. Nevertheless, even assuming the Order met the first three prerequisites, the Judge’s decision to nullify the divorce decree is not consistent with Georgia law. The Order indicates Beneficiary asked the court to set aside the divorce decree because T~ allegedly perpetrated a fraud on the court by asserting he did not know where to locate and serve her, ^[3] and therefore, he should not have been permitted to serve her by publication. ^[4]

Ga. Code Ann. § 9-11-60(d)(2) allows for motions to set aside a judgment based on lack of jurisdiction or fraud. Ga. Code Ann.§ 9-11-60(f) provides that a motion to set aside a judgment on grounds other than lack of personal or subject matter jurisdiction “shall be brought within three years from entry of the judgment complained of.” See Mehdikarimi v. Emaddazfuli, 490 S.E.2d 368, 369 (Ga. 1997) (wife’s motion to void divorce decree’s award of child support to husband barred by three-year statute of limitations); Riddle v. Miller, 248 S.E.2d 616, 616-17 (Ga. 1978) (trial court properly dismissed husband’s untimely motion to set aside divorce decree that was void due to husband’s prior undissolved marriage).

The Order setting aside the divorce decree has no legal effect on the marriage between Claimant and NH. First, as noted above, the Order fails to identify the parties to the divorce decree that is being set aside. Second, the motion to set aside was brought eleven years after the divorce decree was entered and was untimely because it was not brought within three years of the divorce decree as required by Ga. Code Ann. § 9-11-60(f). The Order does not address why the Court entertained an untimely motion. ^[5] See, e.g., Wright v. Hall, 738 S.E.2d 594, 595 (Ga. 2013) (discussing that the court would entertain a motion eleven years after the divorce decree because the statute of limitations was waived when not raised by respondent). Third, based on the evidence from the face of the Order, the Order was entered ex parte, without any notice to T~ in violation of Ga. Code Ann. § 9-11-60(f), which requires that notice be afforded parties on all motions for relief from judgment. In fact, the Order states only that the court heard from Beneficiary. See Johnson alias Gunder v. Gunder, 80 S.E.2d 327, 329 (Ga. 1954) (motion to set aside divorce decree, without any service or notice to the opposing party, is insufficient to effect divorce decree). Fourth, while the basis for the court’s Order is due process based on service by publication, the Order contains no rationale as to how T~’s affidavit, which was required for him to have obtained service by publication, was deficient. See Reynolds, 769 S.E.2d at 513 (discussing how husband could have ascertained address of wife through information available to him and how affidavit was insufficient). The court’s Order was not consistent with Georgia law on relief from judgments. Thus, SSA is not bound to accept the Order.

CONCLUSION

For the foregoing reasons, the presumption of the validity of Beneficiary’s marriage to NH was not overcome, the Order purporting to set aside the divorce decree has no legal effect, and Beneficiary and NH were validly married when NH died for determining Beneficiary’s entitlement to WIB on NH’s account.

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer McMahon

Assistant Regional Counsel

Under Georgia law, the authority to grant divorces is within the exclusive jurisdiction of the superior courts; held a divorce granted by any other court or organization has absolutely no effect. Constitution of Georgia, Article VI, Section IV, Par I; Official Code of Georgia Annotated OCGA) §19-5-1. Tyson v. Tyson, 167 S.E. 172 (1932).

(R~, M~. - ~ - RAIV [J~] - to ARC, Progs., Atl., 05/20/88)

In your memorandum you asked our office to render a legal opinion on the validity of a divorce granted by the Islamic church, the Arafat Masjid of Atlanta, under the laws of Georgia. You specifically wanted to know whether N~ is eligible for mother's insurance benefits on the deceased insured's earnings record.

According to the evidence in the case file, the deceased M~ died of a gunshot wound on May XX, 1987. The claimant, N~ (formerly R~), filed an application for mother's insurance benefits on June XX, 1987, alleging that she was the wife of the deceased wage earner. According to N~, she and the deceased were married in a religious ceremony on December XX, 1980. N~ submitted an Islamic ceremonial marriage certificate with a date that appeared to have been altered.

The case file shows that N~ had been previously married to M2~ and that she was divorced by him in South Carolina on August XX, 1977. The record further indicates that N~ married A~ in an Islamic ceremony on September XX, 1979 1_/ and was granted a "divorce" from him by the Islamic church on September XX, 1980. A notarized statement from an official of the church declared that N~’s marriage to A~ had been dissolved in accordance with the tenets of the Islamic church and that N~ was free to marry.

For reasons hereinafter stated, it is our opinion that N~ is not the wife of the deceased insured and, therefore, she is not eligible to draw mother's insurance benefits on his account.

The authority to grant divorces in Georgia is exclusively within the jurisdiction of the superior courts of the various counties. Constitution of Georgia, Article VI, Section IV, Par I;~/ OCGA §19-5-1; Tyson v. Tyson, 167 S.E. 172 (1932). See, also, Mathews v. Mathews, 197 S.E.2d 547 (1970). Inasmuch as the church lacked statutory authority to grant divorces, the divorce granted by the church to N~ has absolutely no effect. Since N~ never divorced her second husband, A~, she did not have the legal capacity to contract a marriage with M~. A previous undissolved marriage renders a second marriage void. OCGA §19-3-2.3_/ Conner v. Rainwater, 38 S.E.805 (1946). We assume that A~ is living and had not divorced N~ prior to or during her attempted marriage to M~.

In light of the foregoing, N~ is not the wife of the deceased wage earner and cannot draw benefits as his former spouse.

1_/ It is irrelevant whether N~ married A~ in a religious ceremony or not, so long as they considered themselves husband and wife for common-law marriages are valid marriages in Georgia. OCGA §19-3-1. Kersey v. Gardner, 264 F.Supp. 887 (M.D.Ga. 1967).

2_/ The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution. They shall have exclusive jurisdiction over trials in felony cases, except in the case of juvenile offenders as provided by law; in cases respecting title to land; in divorce cases; and in equity cases. The superior courts shall have such appellate jurisdiction, either alone or by circuit or district, as may be provided by law.

3/ To be able to contract marriage, a person must: (1) Be of sound mind; (2) Be at least 16 years of age. If either applicant is under the age of majority, parental consent shall be required, as provided in Code §19-3-37. However, the age limitations contained in this paragraph shall not apply upon proof of pregnancy on the part of the female or in instances in which both applicants are the parents of a living child born out of wedlock, in which case the parties may contract marriage regardless of age; (3) Have no living spouse of a previous undissolved marriage. The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed. Nothing in this paragraph shall be construed to affect the legitimacy of children; (4) Not be related to the prospective spouse by blood or marriage within the prohibited degrees ....

DIVORCE--VALIDITY OF DIVORCED OBTAINED OUTSIDE OF STATE -- OUTSIDE U.S.

Georgia courts will not recognize a foreign nation's (i.e., Dominican Republic) divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered. Christopher v. Christopher, 31 S.E. .2d 818, 198 GA 361(1944). See, opinion, Re: R~,SSN ~ RAIV [T~] to W~, District Office - SSA - Gainesville, Ga. 8/29/77.

(C~ - DNH ~ - RAIV [J~] to ARC, Progs., Atl., 01/05/87)

In your memorandum, you requested our legal opinion as to the validity of the May XX, 1985, Dominican Republic divorce decree of M~ and C~ under Georgia law. The specific issue to be determined is whether M~, the claimant for widows insurance benefits, is lawfully divorced from C~ pursuant to Georgia law and, therefore, is entitled to benefits on the earning record of her first husband, C2~.

The file indicates that M~ married the deceased number holder, C2~, on July XX, 1941, and remained married to him until his death on June XX, 1962. C2~ was domiciled in Georgia at the time of his death. M~ married C~ on April XX, 1970, when she was 47. M~ filed an application for retirement insurance benefits on C2~'s account on November XX, 1984. Benefits were denied on this application because M~ was still married to C~. An administrative investigation conducted on December XX, 1984, revealed that C~ had filed for a divorce on March XX, 1979, in the Superior Court of California, County of San Francisco, but the action was dismissed on June XX, 1979.

The record further indicates that C~ divorced M~ on May XX, 1985, in Santa Domingo, Dominican Republic. In a statement dated November XX, 1985, M~ related that she had received notice of the divorce proceeding in October 1984, but she did not appear or respond to the pleadings. M~ further stated that C~ sent her a copy of the divorce decree by mail. At the time of the divorce, M~ was a domiciliary of Georgia and C~ resided in Milpitas, California. The file also indicates that M~ filed for widows insurance benefits on C2’s~ account on September XX, 1985.

For reasons hereinafter stated, it is this office's opinion that the State of Georgia would not recognize the Dominican Republic decree and, thus, M~ is still the lawful wife of C~ and is not entitled to benefits on the account of C2~.

It is universally accepted law that jurisdiction to grant a divorce rests on the domicile. North v. Williams 325 U.S. 227, 65 S.CT. 1092(1945); 24 AM Jur 2d, Divorce §238. The courts of the county, including Georgia, will not recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage, unless at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered. Christopher v. Christopher 31 S.E 2d 818, 198 GA 361 (1944) North v. Williams, Supra. See, opinion Re: R~, SSN ~~ RAIV T~ to W~, District Office SSA - Gainesville, Ga. 8/29/77. The parties cannot confer jurisdiction on the court. This is true even where the parties were represented by counsel or personally appeared. Boggus v. Boggus, 223 S.E..2d 103, 236 GA 126 (1976).

The documentary evidence indicates that neither M~ nor C~ were ever domiciled in the Dominican Republic. C~ was a domiciliary of Milpitas, California, at the time of the divorce and M~ has been a domiciliary of Columbus, Georgia, since 1962. Inasmuch as neither party was ever a resident or domiciliary of the Dominican Republic, the Dominican court lacked jurisdiction to grant the divorce. The mailing of the notice to M~ of the proposed divorce proceeding did not cure the jurisdictional defect. As noted, the parties cannot confer jurisdiction on a court. Based upon the foregoing, it is our opinion that Georgia would not recognize the divorce, therefore, M~ is still the lawful wife of C~ and is not entitled to widows benefits on the record of C2~.