QUESTION PRESENTED
You asked whether the claimant, A~, who married the number holder (NH), E~, in Alabama,
is entitled to wife’s benefits on the NH’s account. At the time A~ applied for benefits,
both she and the NH were domiciled in Illinois.
SHORT ANSWER
As relevant here, to establish her relationship as the NH’s wife, A~ must show that,
under applicable state law, she has a valid marriage to the NH or qualifies as a putative
spouse. For the reasons discussed below, we conclude that, based on the current evidence,
A~’s marriage to the NH is presumed to be valid under Alabama law, and thus would
be recognized by Illinois. This conclusion, however, is subject to change depending
on the outcome of further development of the evidence. In the event that further development
produces evidence that sufficiently rebuts the presumption, A~ alternatively may be
able to establish her status as the NH’s putative spouse under Illinois law. You may
also develop and establish a putative marriage if it is more convenient than undertaking
the development to determine whether the presumption of validity of the last marriage
applies.
BACKGROUND
The NH married L~ in M~ County, Alabama in August 1964. In June 1968, the NH and A~
were married in G~ County, Alabama. On their marriage certificate, the NH was listed
as divorced. At some point thereafter, the NH and A~ moved from Alabama to Illinois.
In September 2007, the NH applied for retirement and disability benefits. On his applications,
the NH stated that he divorced L~ in Alabama in 1966. He stated that he was married
to A~. In August 2010, the NH applied for SSI. He stated that he was married to A~
and that he lived alone.
L~ applied for and was awarded wife’s benefits on the NH’s account beginning September
2011. On her application, L~ stated that she was not currently married. L~ also applied
for retirement benefits in October 2011, at which time she reported that she was married
to the NH.
In September 2015, A~ applied for wife’s benefits on the NH’s account. On her application,
A~ stated that she married the NH in 1968 and that they had separated after 17 years
of marriage but had never divorced.
According to a Report of Contact dated October 2015, the Chicago East Field Office
(field office) contacted the G~ County courthouse to inquire about searching its divorce
records for a decree for the NH and L~. The G~ County courthouse indicated that a
manual search would be required. There is no further information regarding this issue.
In December 2015, the NH submitted a statement that he married L~ in 1967 and was
only married to her for six months. He stated that he divorced L~ in M~, Alabama.
He added, “L~ knows that we are divorced because 5 or 6 years ago I went down to visit
and heard that she remarried. I spoke with her husband.” The NH stated that he married
A~ in 1968 and that they were still married. However, they had been separated for
30 years. They had one child.
Also in December 2015, SSA sent to the Alabama Department of Public Health, Center
for Health Statistics, a request for a search of divorce records between the NH and
L~. The Center for Health Statistics issued a Certificate of Failure to Find, stating
that no record of divorce was found to exist for the NH and L~ for the years 1959-1969.[1] However, the Center for Health Statistics noted in an information sheet accompanying
the Certificate of Failure to Find that “in Alabama, many older documents were never
filed with the Center for Health Statistics because, until recently, there was no
legal need for those records.”
In December 2016, SSA denied A~’s application for wife’s benefits.
DISCUSSION
Under Title II of the Social Security Act (the Act), a claimant may be entitled to
benefits as the wife of an insured individual who is entitled to old-age or disability
benefits. See 42 U.S.C. § 402(b)(1); see also 20 C.F.R. § 404.330; POMS RS 00202.001. To establish her relationship as the insured’s wife, the claimant must show that
the courts of the state in which the insured is domiciled at the time the application
was filed would find that the claimant and the insured were validly married at the
time the application was filed. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Alternatively, the relationship
requirement may be met if, under state law, the claimant would be able to inherit
a wife’s share of the insured’s intestate personal property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS GN 00305.085 (putative marriage).[2]
I. Based on the current evidence, A~ meets the requirements for a valid marriage under
42 U.S.C. § 416(h)(1)(i), but this conclusion could be affected by further development
of the evidence
To determine the validity of the NH’s marriage to A~, we apply the laws of the state
of Illinois, where the NH was domiciled at the time A~ filed her application. Here,
the NH married A~ in Alabama in 1968. Illinois recognizes a marriage that was validly
contracted in another state, unless it is contrary to the public policy of Illinois.
See 750 Ill. Comp. Stat. 5/213. Therefore, Illinois courts would look to Alabama law
to determine whether the marriage between the NH and A~ was valid when contracted.
Alabama law presumes that a second marriage is valid, and that the first marriage
was dissolved by divorce. See Lockett v. Coleman, 308 So. 2d 689, 691 (Ala. 1974); Hammond v. Shipp, 289 So. 2d 802, 806 (Ala. 1974); POMS GN ATL00305.030A. This presumption, however, is not conclusive, and may be overcome when circumstances
require a reasonable inference to the contrary. See Lockett, 308 So. 2d at 691; Hammond, 289 So. 2d at 806; POMS GN ATL00305.030A. The party attacking the validity of the second marriage bears the burden of showing
that the first marriage was not dissolved. See Jordan v. Copeland, 131 So. 2d 696, 697 (Ala. 1961).
Here, the evidence shows that the NH married L~ in 1964 and then married A~ in 1968.
Both marriages took place in Alabama. The presumption under Alabama law, then, is
that the NH’s second marriage to A~ was valid and that his first marriage to L~ was
dissolved by divorce. As discussed below, we believe that the evidence currently before
us is insufficient to rebut this presumption.
As noted above, the NH consistently reported that he had divorced L~ prior to marrying
A~. On the marriage certificate for the NH and A~, he was listed as divorced. On his
applications for benefits in 2007, the NH stated that he had divorced L~. And in 2015,
he again stated that he had divorced L~ and that she was remarried.
As for L~, she gave inconsistent statements regarding her relationship to the NH.
On her application for wife’s benefits in 2011, L~ stated that she was not currently
married. But on her application for retirement benefits one month later, she reported
that she was married to the NH. There is no indication that the field office developed
the issue of the presumption of the validity of the last marriage by requesting a
statement from L~ as to whether she had divorced the NH. See POMS GN 00305.040(1) (if both parties to prior marriage are available, obtain statements from each
as to whether divorce terminated the prior marriage).
Although the Alabama Department of Public Health, Center for Health Statistics, certified
that it could not find a divorce record for the NH and L~, it also advised that many
older documents were never filed with the agency. Since the NH and L~ were allegedly
divorced in the 1960’s, the Certificate of Failure to Find is not reliable evidence
that their marriage was not dissolved by divorce, but only serves as proof that a
divorce decree was never filed with the Center for Health Statistics.
Under Alabama case law, the presumption in favor of the second marriage is sufficiently
rebutted upon evidence that the records of the divorce courts of all the counties
in the state where the parties lived do not show a divorce. See Jordan, 131 So. 2d at 699-700 (collecting cases); see also POMS GN ATL00305.030E (presumption of validity of last marriage may be rebutted when the whereabouts of
the parties to a prior marriage have been determined, but a search of divorce records
of those jurisdictions fails to reveal evidence of termination). Here, however, we
do not have any evidence as to the status of the divorce records in the counties where
a decree could have been rendered.[3] See Jordan, 131 So. 2d at 700 (“The testimony of the parties, not properly supported by evidence
as to the divorce records in the various jurisdictions in which a decree could be
rendered, is usually treated as not sufficient to overcome the presumption.”).
Thus, we believe an Alabama court would find that the currently available evidence
is insufficient to overcome the presumption that the NH’s second marriage to A~ was
valid, as the circumstances do not require a reasonable inference to the contrary.
And, since their marriage was valid in Alabama, Illinois would also recognize it as
a valid marriage. Consequently, in the absence of any additional evidence, A~ should
be considered the NH’s wife for purposes of entitlement to wife’s benefits under 42
U.S.C. § 416(h)(1)(A)(i).
That being said, you may wish to consider further development by requesting a search
of the records of the divorce courts of the counties where the NH and L~ lived. See POMS GN 00305.035B.1.c (“[e]xhaust all leads” and determine applicability of presumption after “complete
development”), GN ATL00305.030C (determine applicability of presumption after “complete development”). SSA records
show that the NH and L~ were married in M~, Alabama (located in M~ County) in 1964,
and the NH stated that he divorced L~ in M~. At the time he married A~ in 1968, the
NH was living in G~ County. Thus, we recommend a search of the divorce records for
M~ and G~ Counties. We also recommend a search of the divorce records for any other
county in which L~ or the NH may have lived. Based on the outcome of that development,
we advise the following:
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•
If a search reveals a divorce decree for the NH and L~, then L~’s award of benefits
should be reopened and she should be found not entitled to wife’s benefits retroactive
to the initial date of entitlement. Moreover, her claim should be referred to the
Office of the Inspector General for potential fraud. A~, on the other hand, would
be validly married to the NH under both Alabama and Illinois law. As such, she would
be considered the NH’s wife for purposes of entitlement to wife’s benefits. See POMS GN ATL00305.030D (if divorce decree establishes termination of prior marriage, last marriage is valid
based on conclusive evidence that prior marriage did indeed terminate).
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•
If a search reveals no divorce decree, we believe this evidence would sufficiently
rebut the presumption of the validity of the last marriage under Alabama law. See Jordan, 131 So. 2d at 699-700; POMS GN ATL00305.030E. Accordingly, the NH would still be married to L~, and his subsequent marriage to
A~ would be void. See Howard v. Pike, 275 So. 2d 645, 647 (Ala. 1973); Cooney v. Cooney, 840 So. 2d 903, 904 (Ala. Civ. App. 2002) (bigamous marriages are void in Alabama).
However, A~ might qualify for wife’s benefits as a putative spouse under Illinois
law, as discussed below.
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•
If the field office is unable to develop the evidence as to the status of a divorce
record, then, as discussed above, Alabama’s presumption of the validity of the last
marriage applies. Thus, A~ would be considered the NH’s wife for purposes of entitlement
to wife’s benefits. See POMS GN 00305.035B.1.c (if, after complete development, sufficient evidence cannot be obtained to determine
whether prior marriage was or was not terminated, apply presumption of the applicable
state), GN ATL00305.030C (if, after complete development, SSA is unable to determine whether prior marriage
terminated or continued, presumption should be applied).
Alternatively, you may develop and establish a putative marriage, as discussed below,
if it is more convenient than further developing the evidence as described above.
II. Alternatively, A~ might qualify as a putative spouse under 42 U.S.C. § 416(h)(1)(ii)
We also consider whether A~ is the NH’s putative spouse under state law, pursuant
to 42 U.S.C. § 416(h)(1)(A)(ii). In 1977, Illinois enacted a statutory putative marriage
provision which states, in relevant part:
Any person, having gone through a marriage ceremony, who has cohabited with another
to whom he is not legally married in the good faith belief that he was married to
that person is a putative spouse until knowledge of the fact that he is not legally
married terminates his status and prevents acquisition of further rights. A putative
spouse acquires the rights conferred upon a legal spouse, including the right to maintenance
following termination of his status, whether or not the marriage is prohibited . .
. or declared invalid. . . .
750 Ill. Comp. Stat. 5/305; see also POMS GN 00305.085.
Here, the marriage certificate for the NH and A~ shows that the couple went through
a marriage ceremony. A~ also cohabited with the NH after their marriage ceremony.
She stated that they lived together for 17 years and then separated; her statement
is corroborated by the NH.
A~ must also show that she believed in good faith that she was legally married to
the NH. As noted above, on their marriage certificate, the NH was listed as divorced.
And, the NH has consistently made representations to SSA, from the time of his first
application for benefits in 2007 to the present, that he divorced L~ prior to marrying
A~. Thus, there is no indication from the available evidence that A~ had any reason
to believe she was not legally married to the NH. But, you should certainly confirm
with A~ that she had such a good faith belief. If you find that this evidence is sufficient
and credible, then you may conclude that A~ acquired putative spouse status under
Illinois law. See, e.g., In re Marriage of Flores, 421 N.E.2d 393, 395 (Ill. App. 1981) (court should look at the facts of the particular
case and consider whether the parties went through a marriage ceremony, as well as
the education, intelligence, and experience of the one claiming putative spouse status).
CONCLUSION
Based on the current evidence, A~ should be considered the NH’s wife under 42 U.S.C.
§ 416(h)(1)(A)(i), because her marriage to the NH is presumed to be valid under Alabama
law, and thus would be recognized by Illinois. This conclusion is subject to change
based on further development. If, upon further development, additional evidence sufficiently
rebuts this presumption, A~ alternatively may be able to establish her relationship
as the NH’s wife under 42 U.S.C. § 416(h)(1)(A)(ii) by qualifying as a putative spouse
under Illinois law. You may also develop and establish a putative marriage if it is
more convenient than undertaking the development to determine whether the presumption
of validity of the last marriage applies.