SSR 61-8. VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE

A and B were married in New York in 1916 and separated in 1937. They

continued to reside in new York and A was still living and working in that

State in 1946 when he went to Florida to obtain a divorce form B. When he

found he could not readily meet the residence requirements for obtaining a

divorce in Florida, he went to Nevada in July 1946 where he instituted a

divorce action. Notice of this action was served on B solely by

publication in a Nevada newspaper. B did not file any answer nor appear in

court either personally or by attorney. A final decree of divorce was

issued by the Nevada court in September 1946. A immediately returned to

New York and continued to live and work in New York until he died

domiciled in that State in September 1954. In June 1957, B applied for

widow's insurance benefits on A's social security earnings record as his

widow.

In order to be entitled to the widow's insurance benefits for which she

applied, B must, among other requirements all of which she met, meet the

requirement that she was A;s widow at the time of his death. Under section

216(h)(1) of the Social Security Act, as pertinent in this case, an

applicant for benefits is the widow of an insured individual if the courts

of the State in which such insured individual was domiciled at the time of

death would find that such applicant and such insured individual were

validly married at the time the insured individual died. It is necessary,

therefore, to determine whether the courts of New York would find that B

is A's widow. The resolution of this question depends on whether the

courts of New York would recognize as valid the divorce obtained by A in

Nevada.

Under the circumstances pertinent to this case, the full faith and credit

clause of the Federal Constitution does not require the courts of New York

to recognize the validity of the Nevada divorce decree unless A had

established the existence of a bona fide domicile in Nevada at the time of

the proceedings.

courts of New York would recognize as valid the divorce obtained by A in

Nevada.

Under the circumstances pertinent to this case, the full faith and credit

clause of the Federal Constitution does not require the courts of New York

to recognize the validity of the Nevada divorce decree unless A had

established the existence of a bona fide domicile in Nevada at the time of

the proceedings.

Under Nevada law, the plaintiff in a divorce action must show that, in

addition to his physical residence in Nevada for the period required by

statute, he intends to make that State his permanent home or, at least, to

remain there for an indefinite period. Therefore, a decree of a Nevada

court is void for lack of jurisdiction where the plaintiff, though

physically present in Nevada for the required statutory period, had gone

to Nevada solely for the purpose of securing a divorce and had no

intention of remaining in that State permanently or for an indefinite

time, if the service on the defendant of notice of the proceedings was

limited to service by publication.

A must have satisfied the court that he had been physically present in

Nevada for the required statutory period and must also have certified that

he intended to make that State his permanent, or at least indefinite,

residence. However, A originally went to Florida to secure a divorce and

then, when he found he could not meet the residence requirements in that

State, went to Nevada for the same purpose. The fact that A was living and

working in New York immediately before the divorce action was instituted

and immediately after the decree of divorce was issued, is evidence that

he had no intention of becoming a permanent or indefinite resident of

Nevada. Consequently, the Nevada court did not have jurisdiction to grant

the divorce decree, and such decree is null and void and would not be

recognized by the New York courts.

ing in New York immediately before the divorce action was instituted

and immediately after the decree of divorce was issued, is evidence that

he had no intention of becoming a permanent or indefinite resident of

Nevada. Consequently, the Nevada court did not have jurisdiction to grant

the divorce decree, and such decree is null and void and would not be

recognized by the New York courts.

It is held , therefore, that B is A's legal widow and is entitled

to the widow's insurance benefits for which she filed application.