SSR 81-2: SECTION 216(d)(2) (42 U.S.C. 416(d)(2)) WIDOW'S INSURANCE BENEFITS -- SURVIVING DIVORCED WIFE -- DURATION OF MARRIAGE REQUIREMENT

20 CFR 404.336(a)(2)

SSR 81-2

The claimant, an applicant for surviving divorced wife's benefits, and the decedent were married on November 28, 1940; and on the petition of the decedent, a decree of divorce was entered by a Court of Common Pleas in Pennsylvania on April 17, 1950. The claimant filed an appeal form that decree; but on July 30, 1951, the Superor Court of Pennsylvania affirmed the judgment of the Court of Common Pleas. Under Pennsylvania law, however, the claimant remained married to the decedent until July 30, 1951, when the Superior Court made final disposition of her appeal. Held, because the claimant was married to the decedent for at least ten years immediately before the date on which the divorce became effective, she is his "surviving divorced wife" as defined in section 216(d)(2) of the Social Security Act.

The only question for determination in this case is whether the claimant was married to the decedent for the requisite period of time which would entitle her to benefits under the Social Security Act (the Act).

The claimant filed an application for surviving divorced wife's benefits on the earnings record of the decedent on February 13, 1979. She and the decedent were married on November 28, 1940. A decree from a Court of Common Pleas in Pennsylvania shows that the claimant and the decedent, on his petition, were divorced on April 17, 1950. On June 7, 1979, the Social Security Administration (SSA) issued Social Security Notice of Disapproved Claim advising the claimant that she was not entitled to benefits because she and the decedent were not married for at least 10 years before the date of their divorce. On June 20, 1979, the claimant filed a request for reconsideration indicating that she had filed an appeal from the decree of divorce and that the divorce was not final until July 30, 1951, when the Superior Court of Pennsylvania affirmed the judgment of the Court of Common Pleas. On July 23, 1979, SSA issued a Social Security Notice of Reconsideration affirming the prior determination that the claimant was not entitled to surviving divorced wife's benefits on the earnings record of the decedent. Dissatisfied with this determination, the claimant then filed a request for hearing on August 6, 1979. She argued that where there is an appeal from a decree of divorce, until disposition is made by the Appellate Court, the parties remain married and reciprocal obligations remain intact, citing Commonwealth v. Scott, 17 Adams Law Journal 12 (1975) and Appleton vs. Appleton, 9 Chester 126 (1959).

Section 216(d)(2) of the Act provides:

The term "surviving divorced wife" means a woman divorced from an individual who has died, but only is she had been married to the individual for a period of 10 years immediately before the date the divorce became effective.

Under Pennsylvania case law, an appeal from a divorce decree to the Superior Court suspends the effect of that decree. In a case involving alimony during litigation, the Superior Court stated:

"When the court of common pleas has entered a decree of divorce an appeal to this court is [a] right which, until it is disposed of, suspends for all purposes the operation of the decree of the court below. The parties are still husband and wife, and the action remains pending. There does not seem to be any valid reason for holding that the necessity for the maintenance of the wife ceases before the proceeding is finally disposed of, merely because the court below has entered a decree which has been absolutely superseded by the appeal." Ponthus v. Ponthus, 70 Pa. Super. 39, 41-2 (1918). And in Commonwealth v. Scholl, 156 Pa. Super. 136, 39 A.2d 719 (1944), the court also stated that an appeal "suspends for all purposes the operation of the decree." (Both of these cases are cited as precedent in Commonwealth ex. rel. Brown v. Brown, Pa. Super. 386A.2d 15.)

In Commonwealth v. Kissinger, 4 D.&C. 109, 110, 111 (1923), the court stated:

"We think it follows that when in this case an appeal was taken, which appeal operates as a supersedeas, the judgment or decree in divorce against Ina W. Kissinger was suspended, and that, therefore, the parties still remain, in law, husband and wife. Literally speaking, 'supersedeas' means a setting aside of the thing superseded; in this case that would be a decree in divorce. Or if it is not technically set aside, it is at least suspended, that is, prevented from going into effect, until the matter is disposed of by the appellate court. To regard it otherwise would be treating the appeal as virtually a nullity, so far as it affected the legal relationship of the parties, and either party would be free to marry again, even though the decree in divorce is suspended. While we know of no Pennsylvania case on this point, we think no lawyer would advise his client to incur the risk of a charge of bigamy by contracting a second marriage while the appeal from a decree in divorce was pending; yet, if the logic of the counsel for the respondent, Raymond Kissinger, in this case is correct, either Kissinger or his wife would be free to marry at the present time. If they are not free to marry, they are not divorced; if they ar not divorced, they are husband and wife; if they are husband and wife, the order of the Court of Quarter Sessions upon Raymond Kissinger, the husband, for the support of his wife, Ina W. Kissinger, is still in full force and effect. . . . We think the correct view of the situation is that the Common Pleas judgment of divorce is suspended. As in a criminal case, when an appeal operating as a supersedeas is taken, the judgment of the court below cannot be carried out, and the legal rights of the parties affected remain practically as they were before judgment was rendered. (See also Commonwealth vs. Huston, 31 D.&C. 167)."

Under Pennsylvania law, the legal rights and responsibilities of marriage continue until final disposition is made of an appeal from a divorce decree. Therefore, the claimant and the decedent remained married until July 30, 1951, when the Superior Court made final disposition of the appeal from the divorce decree of the Court of Common Pleas. Accordingly, the claimant was married to the decedent for more than the requisite 10 years (from November 28, 1940 to July 30, 1951), and is his "surviving divorced wife" as defined in the Act.

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