QUESTION
You asked whether the claimant, who divorced the number holder in the Republic of
Haiti, is eligible for wife's insurance benefits as the wife or divorced wife of the
number holder.
OPINION
We believe a Social Security Administration (SSA) adjudicator could find the claimant
eligible for wife's insurance benefits as a divorced wife on the account of the number
holder.
BACKGROUND
Janet F~ (Claimant) and Jean E~, the number holder (NH), were married on December
11, 1965, in the Republic of Haiti. Claimant and NH produced two children during their
marriage. On October 20, 1977, Claimant became a naturalized citizen of the United
States. On September 21, 1979, Claimant obtained a divorce decree in Haiti. Claimant
personally appeared before a court in Haiti to obtain the divorce decree. Claimant
alleges NH filed an answer after receiving notification of the divorce proceedings
by mail. Claimant and NH were both residents of New York at the time of the alleged
divorce.
Claimant married and divorced twice following her alleged divorce from NH. Neither
of these latter two marriages lasted longer than ten years. Claimant's most recent
divorce occurred on June 23, 1993. NH remarried on August 1, 1995, and remains a resident
of New York. Claimant and NH are both over the age of sixty-two. NH began receiving
retirement insurance benefits in August 2002. Claimant began receiving disability
insurance benefits in September 1997, and receives less than half the monthly benefit
amount received by NH.
DISCUSSION
To be eligible for wife's insurance benefits as either a wife or a divorced wife of
an insured individual entitled to retirement or disability insurance benefits, a claimant
must first show she (1) filed an application for wife's insurance benefits; (2) has
attained the age of sixty-two, and (3) is not entitled to retirement or disability
benefits or is entitled based on a primary insurance amount which is less than one-half
the primary insurance amount of the insured individual. See Social Security Act (Act) § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. §§ 404.330,
404.331 (2008). Claimant filed an application for benefits, is over the age of sixty-two,
and receives disability benefits in an amount which is less than half the monthly
retirement benefits received by NH. However, the Act imposes additional eligibility
requirements before either a wife or a divorced wife can obtain wife's insurance benefits.
1. Eligibility for Wife's Insurance Benefits as the Spouse of NH
A claimant for wife's insurance benefits as the wife of an insured individual must
also show she is married to the insured individual as well as one of the following:
(1) the marriage lasted at least one year immediately preceding the day on which the
application was filed, (2) both the claimant and the insured individual are the natural
parents of a child, or (3) the claimant was entitled to Social Security benefits in
the month before she married the insured. See Act § 202(b)(1); Act § 216(b)(1), 42 U.S.C. § 416(b)(1); 20 C.F.R. § 404.330. Although
Claimant and NH produced two children during their marriage, Claimant submitted documentation
indicating she obtained a divorce from NH in the Republic of Haiti on September 21,
1979. If the divorce was valid, Claimant cannot receive wife's insurance benefits
as NH's wife.
A claimant is the wife of an insured individual if the courts of the state in which
such insured individual is domiciled would find the claimant and the insured individual
were validly married when the application was filed. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345 (2008). NH was domiciled in New York when
Claimant filed her application for wife's insurance benefits. The Office of the Regional
Chief Counsel in Region II (ORCC-II) analyzed the validity of the divorce decree submitted
by Claimant and concluded New York would most likely recognize the decree as valid.
The ORCC-II noted Claimant personally appeared before a court in Haiti to obtain the
divorce. Claimant also alleges NH filed an answer after receiving notification of
the divorce proceedings by mail._/1
NH's consent to the divorce is further evidenced by the decision of both NH and Claimant
to remarry. The ORCC-II explained New York recognizes a presumption in favor of finding
an individual's most recent marriage valid._/2 Therefore, we believe a New York court
would accept the Haitian divorce decree and find NH and Claimant were not married
when the application for wife's insurance benefits was filed.
Claimant could be deemed the wife of NH if a New York court would find Claimant eligible
to inherit from NH through intestate succession even after finding she was not legally
married to NH when the application was filed. See § Act 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Claimant could also be deemed the wife
of NH if she entered into a purported marriage with NH which would have been valid
but for a legal impediment not known to Claimant at the time of the ceremony. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a) (2008). However, it is not necessary
to address these issues since, as explained below, Claimant is entitled to wife's
insurance benefits as the divorced wife of NH.
2. Eligibility for Wife's Insurance Benefits as the Divorced Spouse of NH
A claimant for wife's insurance benefits as a divorced wife of an insured individual
entitled to retirement or disability benefits must also show she is not married and
was married to the insured individual for at least ten years prior to their divorce.
See Act §§ 202(b)(1), 216(d)(1); 20 C.F.R. § 404.331. Claimant is not married and her
marriage to NH lasted more than ten years. A claimant can lose eligibility for wife's
insurance benefits as a divorced wife if she marries a person other than the insured
individual. See Act § 202(b)(1)(H); 20 C.F.R. § 404.332(b)(3) (2008). However, a divorced wife can
be re-entitled to benefits if she was divorced from the number holder and married
another person but the later marriage terminated, provided she meets the other requirements
for entitlement. See POMS RS 00202.046. Claimant's most recent divorce occurred on June 23, 1993. Although Claimant married
and divorced twice since her divorce from NH, she is eligible for wife's insurance
benefits on NH's account as a divorced wife because she is currently single.
CONCLUSION
An SSA adjudicator could find Claimant eligible for wife's insurance benefits as a
divorced wife on the account of NH.
Mary A. S~
Regional Chief Counsel
By: _________
Christopher G. H~
Assistant Regional Counsel
_/1 “Under New York law, a divorce granted by foreign country will be afforded comity
by the State of New York where the jurisdiction of the foreign tribunal was predicated
upon the consent of both parties and residency, rather than domicile, was established
by a statutory 'brief contact' through the appearance of one of the parties.” See Program Operations Manual System (POMS) PR 06210.035(A). “However, mail order divorces, where a husband and wife attempt to confer jurisdiction
upon a court of a foreign nation by executing powers of attorney to counsel residing
there, and forwarding such instruments by mail without ever visiting that nation,
are void.” Id.
_/2 “This presumption operates to effectuate 'a particular public policy such as upholding
legitimacy, favoring the participation in the decedent's estate of one who lived with
him as his spouse, and preserving the validity of a marriage where no strong public
policy would be served by doing otherwise.” See POMS PR 05110.035, quoting Dolan v. Celebrezze, 381 F.2d 231, 237 (2nd Cir. 1967).