SSR 68-2: SECTION 202(b)(1)(H). -- RELATIONSHIP -- VALIDITY OF DIVORCE -- MISNOMER OF PARTIES

SSR 68-2

J, a fully insured worker, became entitled to old-age insurance benefits

effective October 1958. His wife, A, became entitled at age 65 to wife's

insurance benefits effective February 1959. In April 1962, the worker who

was named "John Doe Smith" at birth, began using the name "John Smith

Doe." Thereafter, in July 1963, after a marriage of some 40 years, J

brought suit for a divorce in the State of California. In the pleadings

and other documents filed in the action, the worker is designated as "John

Doe" and "John Doe, also known as John Doe Smith." The interlocutory

decree of divorce, granted in May 1964, designated him as "John Doe" and

the final divorce decree identified him as "John Doe (John Doe Smith)."

His wife was identified as "Alice Jones Doe" in the pleadings and

ancillary documents although she signed "Alice Jones Smith" to the

documents she filed in the divorce action.

The divorce became final in June 1965; accordingly, A's entitlement to

wife's insurance benefits was terminated effective May 1965, the month

preceding the month in which the divorce became final, as provided in

section 202(b)(1) of the Social Security Act then in effect. A protested

the termination of her benefits on the grounds, first, that J was

designated in the interlocutory decree by a name he was then using rather

than the name given to him at birth, and secondly, that she was designated

in the interlocutory and final divorce decrees by a name she was not then

using.

The question thus presented is whether use of a name other than the name

given at birth by one of the parties and possible misnomer of the other

party in an interlocutory and final decree of divorce would render the

divorce invalid under California law.

to him at birth, and secondly, that she was designated

in the interlocutory and final divorce decrees by a name she was not then

using.

The question thus presented is whether use of a name other than the name

given at birth by one of the parties and possible misnomer of the other

party in an interlocutory and final decree of divorce would render the

divorce invalid under California law.

In this case there was no misnomer as to J in the divorce decrees. At the

time of the divorce proceedings and thereafter he was using the name "John

Smith Doe." Moreover, despite A's later protestations to the contrary, it

appears from the documents filed in the divorce action that A must

necessarily have been aware that J was bringing suit for divorce under the

name he was then using and that she was not misled thereby.

As to A, there was no such misnomer as to render the decree invalid under

California law. Although she was well aware that J had brought suit for

divorce against her as "Alice Jones Doe" and filed an answer therein, she

raised no objection to this particular designation of her as such in the

proceeding. Had A not actually received notice of the action pending

against her and not appeared therein, or had she shown that she was in

some manner materially prejudiced by the designation, a different result

might be indicated.

In support of this position, it is stated generally in 42 American

Jurisprudence, Process, section 18, that:

In Brum v. Ivins , 96 Pac. 876, 877 (Calif. 1908), the Supreme

Court of California accepted this view, stating:

ing

against her and not appeared therein, or had she shown that she was in

some manner materially prejudiced by the designation, a different result

might be indicated.

In support of this position, it is stated generally in 42 American

Jurisprudence, Process, section 18, that:

In Brum v. Ivins , 96 Pac. 876, 877 (Calif. 1908), the Supreme

Court of California accepted this view, stating:

In Howton v. Gilpin , 69 S.W. 766 (Ky. 1902), it was contended that

the divorce decree there under consideration was void because the

defendant in the action, whose name actually was Sarah J. Herron, was

erroneously designated in the decree variously as "Ira J. Herron" and "Ira

Ann Herron." The Court of Appeals of Kentucky, however, rejected that

contention. The court reasoned that it was clear enough from the decree

itself that it was intended to grant the plaintiff a divorce from his

wife, who was Sarah J. Herron, and that, accordingly, the erroneous

description of her was not a factor which would invalidate the decree. The

Kentucky court's reasoning is persuasive and considering the holding in Brum v. Ivins , supra, it is believed that California courts would

reach the same conclusion as the Kentucky court as to the effect of

misnomer under these circumstances, on the validity of a divorce

decree.

While the divorce terminated A's entitlement to wife's benefits, A may

upon filing a new application become entitled to wife's insurance benefits

as the divorced wife of J under the Act as amended in 1965. Section

202(b)(1)(H) of the Act now provides that the entitlement of a

wife-beneficiary will not terminate where at the time of a divorce she is

age 62 or over and has been married to the insured worker for at least 20

years immediately prior thereto

ay

upon filing a new application become entitled to wife's insurance benefits

as the divorced wife of J under the Act as amended in 1965. Section

202(b)(1)(H) of the Act now provides that the entitlement of a

wife-beneficiary will not terminate where at the time of a divorce she is

age 62 or over and has been married to the insured worker for at least 20

years immediately prior thereto. Where entitlement of such a

wife-beneficiary terminated prior to the effective date of this new

provision, her benefits may be reinstated irrespective of whether she

meets the conditions of support for initial entitlement as a divorced

wife, required by section 202(b)(1)(D) of the Act. However, benefits will

be reinstated no earlier than September 1965 on the basis of a new

application. (See SSR 67-1, C.B. 1967, p.2, for a ruling illustrating this

provision of the Act.)

Accordingly, it is held that the divorce between J and A is not

invalidated by California law under the circumstances of this case.

Benefits were therefore properly terminated under the law in effect at the

time the divorce became final in June 1965. Upon filing a new application,

A may again be entitled to wife's insurance benefits, subject to the usual

retroactive period of 12 months.