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