SSR 72-3: SECTIONS 202(e)(1) and 216(h)(1)(A) (42 U.S.C.A. 402(E)(1) and 416(h)(1)(A)). -- RELATIONSHIP -- VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE

20 CFR 404.1101

SSR 72-3

Where Alabama court, pursuant to petition of claimant, vacated decree of divorce obtained by claimant against her husband, the worker, who died domiciled in New York shortly before claimant instituted the action to vacate the divorce decree, and where following the entry of the vacating decree claimant filed for widow's benefits, and the evidence established that representative of worker's estate was not served with notice of claimant's petition for vacating divorce decree, held, under Alabama law, decree vacating the divorce was void since curt lacked jurisdiction, no notice of the petition having been served upon the representative of worker's estate and, therefore, would not be recognized by the courts of New York. Accordingly, since divorce decree remained in effect, claimant is not the widow of the worker.

R, the worker, and B, his wife, were married in New York State in 1933. In July 24, 1961, B was granted a final decree of divorce in Alabama after instituting a divorce action against R, who had appeared therein and waived defenses. R died domiciled in New York on July 29, 1961. Subsequently, B filed a motion to vacate the divorce decree in the Alabama court. On August 15, 1961, the court granted B's petition and issued a decree purporting to set aside the decree of divorce.

The vacating decree issued by the Alabama court did not indicate that any attempt was made to give notice to R, or his estate, of the motion to set aside the decree. Moreover, it made no mention of the legal grounds upon which the court acted, apart from noting that less than 30 days had elapsed (as required by State statute in certain instances) since rendition of the divorce decree.

Since the worker died domiciled n New York, questions relating to the status of the parties are to be determined by reference to New York law. The specific issue is what effect the courts of that State would give to the Alabama decree which purported to vacate a final judgment of divorce. If the vacating order is found valid, B may be entitled to widow's insurance benefits as the legal widow of the deceased.

The New York courts undoubtedly would recognize the Alabama decree of divorce since R entered an appearance and waived defenses. Under the rules discussed in Sherrer v. Sherrer, 334 U.S. 343 (1948), and Johnson v. Muelberger, 340 U.S. 581 (1951), New York is prevented by the full faith and credit clause of the United States Constitution from entertaining collateral attacks on the divorce decree by a party who appeared therein. Magowan v. Magowan, 279 N.Y.S. 2d 513 (Ct. App. 1967).

Under Alabama law, a court may, on its own motion, set aside a decree of divorce within 30 days of its rendition, and no notice to the parties is necessary as a condition precedent to such action. Ford v. Ford, 117 So. 462 (Ala.); Ex Parte Johnson, 192 So. 508 (Ala.); Title 13, Sec. 119, Code of Ala. 1940. With respect to the decree setting aside the divorce, the New York courts would give full effect to such decree if it were valid under the law of Alabama, i.e., if the court issuing the decree had jurisdiction over the parties and the subject matter.

While an Alabama court may, on its own motion, set aside a decree of divorce within 30 days of its rendition without prior notice to the parties, supra, the situation is entirely different where one of the parties files a motion to set aside a judgment or decree. Title 7, Section 569, Code of Alabama 1940, provides that when a motion is filed to set aside a final judgment or decree, notice to the party adversely interested, or if dead, to his personal representative is essential. See Cowdy v. Hood, 29 So. 2d 121 (Ala.); Ford v. Ford, supra. Therefore, since no notice was given to R's legal representative, it is evident that the decree purporting to set aside the divorce is invalid under Alabama law.

Accordingly, as New York law would not recognize an invalid vacating decree, held, the divorce must be accorded recognition. Therefore, B does not have the status of widow of the worker for social security purposes.

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