SSR 61-65. EFFECT OF INVALID DIVORCE WHERE PARTIES ARE ESTOPPED TO DENY ITS VALIDITY

H applied for old-age insurance benefits in January 1961 and became

entitled to the benefits claimed beginning January 1960. W applied for

wife's insurance benefits on his earnings record at the same time. She had

married H in 1936, and they were living together when they filed their

claims. Both H and W were domiciled in florida. Before his ceremonial

marriage to W, H had secured a divorce from his first wife in Mexico in

1935. H had gone to Mexico and appeared personally in the divorce

proceeding, but he and his first wife were domiciled in Florida at the

time of the divorce. His first wife was served with notice of the divorce

action but did not appear in the proceeding. She received a copy of the

decree, knew of H's remarriage and apparently considered her marriage

terminated, but she herself did not remarry. H had two children of this

first marriage.

The question is whether W is H's wife, as required by section 216(h)(1)

of the Social Security Act for entitlement to wife's insurance benefits.

All other requirements for entitlement beginning January 1960 have been

met by W.

Under section 216(h)(1)(A), a woman is the wife of a worker for purposes

of wife's insurance benefits if the courts of the State in which he is

domiciled at the time she files her application would find that either (1)

the worker and she were validly married at that time, or (2) she would

have the same status as a wife for a share in the distribution of his

personal property if he had died intestate.

216(h)(1)(A), a woman is the wife of a worker for purposes

of wife's insurance benefits if the courts of the State in which he is

domiciled at the time she files her application would find that either (1)

the worker and she were validly married at that time, or (2) she would

have the same status as a wife for a share in the distribution of his

personal property if he had died intestate.

Under section 216(h)(1)(B), enacted in 1960, if no other person is or has

been entitled to wife's benefits by meeting one of the alternative

requirements above, a claimant who does not meet either of these

alternative requirements may nevertheless be deemed to be validly married

for purposes of wife's insurance benefits for months after August 1969,

under the following conditions: She must in good faith have gone through a

marriage ceremony with the worker not knowing of an impediment which made

the marriage invalid; she must be living in the same household with the

worker when her application is filed; and the impediment must have

resulted either from a prior marriage or the dissolution of the prior

marriage, or from a defect in the procedure followed in connection with

her ceremonial marriage to the worker.

W could probably qualify as H's wife under this "deemed marriage"

provision in section 216(h)(1)(B) if her marriage had no legal validity

under Florida law. However, September 1960 is the first month for which a

woman can be entitled to a wife's benefits on the basis of this provision.

On the other hand, if W qualifies as a wife under section 216(h)(1)(A),

i.e., if the Florida courts would find either that she was validly married

to H or that she would have the same status as a wife with respect to the

distribution of his personal property if he died intestate, then she would

be entitled to benefits beginning January 1960.

ife's benefits on the basis of this provision.

On the other hand, if W qualifies as a wife under section 216(h)(1)(A),

i.e., if the Florida courts would find either that she was validly married

to H or that she would have the same status as a wife with respect to the

distribution of his personal property if he died intestate, then she would

be entitled to benefits beginning January 1960.

In a timely and proper action, the courts of Florida would doubtless hold

invalid a divorce decree procured in a foreign jurisdiction where neither

party was domiciled. However, the Florida courts have held that the

validity of a marriage cannot be questioned on the ground that a prior

divorce of one of the spouses is invalid, unless the party raising the

question has a right to impeach the divorce decree. Gaylord v. Gaylord , 45 So. 2d 507 (Fla. 1950); de Marigny v. Marigny , 43 So. 2d 442 (Fla. 1949).

In the present case, H would not be allowed in Florida courts to attack

W's marital status by impeaching a divorce decree which he himself had

obtained. Hall v. Hall, 112 So. 622 (Fla. 1927); Reichert v. Appel, 74 So. 2d 674 (Fla. 1954). This is in

accord with the general rule. His first wife also would be barred by

laches; she has waited so long that she cannot now attack the validity of

the divorce decree, particularly when this attack involves another

marriage of 25 years' duration.

Nor would H's children by his first marriage have standing as potential

heirs in Florida courts to impeach the divorce decree, whether considered

as strangers or in privity with H. Under Florida law, a stranger assailing

the decree must show that he had rights or status which existed prior to

the decree and were adversely affected by it; but under florida law a

child asserting his rights as heir or potential heir has been held to have

merely an expectancy until the death of his father

impeach the divorce decree, whether considered

as strangers or in privity with H. Under Florida law, a stranger assailing

the decree must show that he had rights or status which existed prior to

the decree and were adversely affected by it; but under florida law a

child asserting his rights as heir or potential heir has been held to have

merely an expectancy until the death of his father. This is not such a

pre-existing right or interest as would be required for a collateral

attack upon the decree by a stranger. If the children are regarded as

being in privity with H by the Florida courts, the children would not be

allowed to attack the decree since they would have no greater right than

does H to attack the decree. Alexander v. Colston , 66 So .

2d 673 (Fla. 1953). Thus, Florida courts would refuse to inquire into the

validity of W's marriage on the basis of the possible invalidity of H's

prior divorce since there is no one who could question the decree in

Florida courts so as to defeat W's right to share in H's intestate

personal property.

Accordingly, although W's marriage to H may be invalid because of the

invalid dissolution of his prior marriage, W nevertheless is H's wife

within the meaning of section 216(h)(1)(A) of the Act since she would have

the same status as a wife with respect to the distribution of his personal

property had he died intestate. Therefore, she is entitled to wife's

insurance benefits beginning January 1960.