TN 23 (09-15)

PR 05005.036 North Carolina

A. PR 15-185 D~ – Status of Marital Relationship between D~ and Number Holder O~ for Purposes of Entitlement for Wife’s Benefits – North Carolina and New York

Date: August 17, 2015

1. Syllabus

Under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, the Claimant married in North Carolina prior to obtaining the legal age of consent, but a child was born during the marriage, the Claimant lived with her then spouse past the age of majority, and the parties ratified the marriage by living together after Claimant reached the age of consent, therefore, the marriage between Claimant and her then spouse cannot be declared void. Thus, Claimant was lawfully married under North Carolina law. The Claimant’s North Carolina husband was still living and the Claimant and her North Carolina husband were still lawfully married at the time Claimant and the NH married in New York. Accordingly, Claimant’s marriage to the NH is void under New York law on the basis of Claimant’s bigamy. Under the facts of this case, we do not believe New York courts would recognize the presumption of validity that attaches to the ceremonial marriage of Claimant and the NH.

The Claimant’s relationship as a wife of the insured NH can be established under the Social Security Act (Act), provided the requisite factors for a deemed marriage are met. We recommend further development of the record on the issue of whether claimant acted in good faith before you reach this conclusion. If an adjudicator establishes a deemed marriage, then Claimant would be eligible for wife’s benefits on the NH’s account, provided she meets all other eligibility requirements.

2. Opinion

QUESTION PRESENTED

Whether D~ (Claimant), who previously entered into an underage marriage in North Carolina, is validly married in New York to number holder O~ (NH) and therefore entitled to wife’s benefits on the record of the NH.

OPINION

Under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, where Claimant married in North Carolina prior to obtaining the legal age of consent, a child was born during the marriage, and Claimant lived with her then spouse past the age of majority, the marriage between Claimant and her then spouse cannot be declared void. In addition, the parties ratified the marriage by living together after Claimant reached the age of consent. Thus, Claimant was lawfully married under North Carolina law. Because Claimant’s North Carolina husband was still living, Claimant and her North Carolina husband were still lawfully married at the time Claimant and the NH married in New York. Accordingly, Claimant’s marriage to the NH is void under New York law on the basis of Claimant’s bigamy. Under the facts of this case, we do not believe New York courts would recognize the presumption of validity that attaches to the ceremonial marriage of Claimant and the NH. Regardless, Claimant’s relationship as a wife of the insured NH can be established under the Social Security Act (Act), provided the requisite factors for a deemed marriage are met. However, we recommend further development of the record on the issue of whether claimant acted in good faith before you reach this conclusion. If an adjudicator establishes a deemed marriage, then Claimant would be eligible for wife’s benefits on the NH’s account, provided she meets all other eligibility requirements.

BACKGROUND1

Claimant was born D~ on November XX, XXXX. On November XX, XXXX, a few days before her 18th birthday, Claimant married J~ in Northampton, North Carolina. Their marriage was conducted by a justice of the peace. Claimant’s father, who was alive at the time, did not sign her marriage certificate. Claimant lived with Mr. P~ on and off in North Carolina from 1963 to 1966, and had a son with him in 1966. Claimant and Mr. P~ separated and never lived together again after 1966.

Claimant married the NH under the name D~2 on November XX, XXXX in Brooklyn, New York.3 On her marriage license, Claimant indicated that she had never been previously married.

Mr. P~ never remarried, and died on December XX, XXXX in Northampton, North Carolina. Claimant was listed as his surviving spouse on his death certificate.

Claimant, under the name D~, applied for wife’s insurance benefits on the NH’s record on June XX, XXXX.4 During the application process, Claimant stated that she never sought a divorce nor had the marriage to Mr. P~ formally voided by a court before marrying the NH because she believed her marriage to Mr. P~ was void. According to Claimant, the North Carolina Bureau of Vital Statistics informed her that her marriage to Mr. P~ was not “legal” because she married Mr. P~ while underage and without her father’s consent or signature.

In June 20, 2013 statements to SSA, Claimant stated that she had separated from Mr. J~ in 1984 and reunited in 2009. They had lived together since 2009. The NH stated that he moved back in with Claimant in 2008 or 2009. Subsequently, in July 2, 2013 statements, Claimant and the NH stated that they had separated from 1988 to 1993, and that the NH had returned to live with her in 1993. Both Claimant and the NH currently live together in New York.

ANALYSIS

Claimant May Be Entitled for Wife’s Benefits on the NH’s Account as the Deemed Wife of the NH

  1. Social Security Laws and Regulations Concerning Insured Wife’s Benefits

    To qualify for wife’s insurance benefits under section 202(b) of the Act a claimant must apply for such benefits, be the insured’s “wife,” as defined in section 216(b), be 62 years-old, and must not be entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full husband’s benefit. Act §§ 202(b) and 216(b), 42 U.S.C. §§ 402(b) and 416(b); see also 20 C.F.R. §§ 404.330 and 404.344. Additionally, the claimant’s relationship with the insured as a wife must have lasted at least one year. Act § 216(b); 20 C.F.R. § 404.330(a)(1).

    To determine whether the claimant qualifies as the insured’s “wife,” we look to the laws of the state where the insured had a permanent home when the claimant applied for wife’s benefits. 20 C.F.R. § 404.345; see also 20 C.F.R. § 404.344. If the claimant and the insured were validly married under state law at the time the claimant applied for wife’s benefits, the relationship requirement will be met. 20 C.F.R. § 404.345. The relationship requirement will also be met if under state law the claimant would be able to inherit a wife’s share of the insured’s personal property if he were to die without leaving a will. 20 C.F.R. § 404.345.

    If the relationship as the insured’s wife cannot be established under State law as explained in 20 C.F.R. § 404.345, the claimant may alternatively be eligible for benefits based upon a deemed valid marriage. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a); see also 20 C.F.R. 404.344. A claimant will be deemed to the wife of the insured if, in good faith, she went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a). A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. Act § 216(h)(1)(B)(iv); 20 C.F.R. § 404.346(a). Good faith means that at the time of the ceremony she did not know that a legal impediment existed, or if she did know, she thought that it would not prevent a valid marriage. 20 C.F.R. § 404.346(a). Further, to be entitled to benefits as a wife as the result of a deemed valid marriage, the claimant and the insured must have been living in the same household at the time she applied for benefits. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(b); Program Operations Manual System (POMS) GN00305.055 B and C provides definitions of marriage ceremony, good faith and legal impediment, as well as the development needed for each of these factors.

  2. Claimant’s Marriage To Mr. P~ Was Valid Under North Carolina Law

    Under North Carolina law, a valid marriage is created by the consent of a male and female “who may lawfully marry” to take each other as husband and wife expressed in the presence of each other and in the presence of a minister or a magistrate, or in accordance with any mode of solemnization recognized by any religious denomination or Indian Nation or Tribe. 5 See N.C. Gen. Stat. Ann. § 51-1 (West 2015); see also N.C. Gen. Stat. Ann. § 51-6 (West 2015) (solemnization without marriage license unlawful; at least two witnesses to marriage ceremony required); POMS PR 05205.036. North Carolina law provides that all marriages “between a male person under 16 years of age and any female, or between a female person under 16 years of age and any male . . . shall be void.” N.C. Gen. Stat. Ann. § 51-3 (West 2015). North Carolina law also provides that persons over 16 years of age and under 18 years of age may marry only with parental consent. See N.C. Gen. Stat. Ann. §51-2(a1) (West 2015); POMS PR 05205.036. Further, all marriages “between persons either of whom is incapable of contracting from want of will or understanding, shall be void.” N.C. Gen. Stat. Ann. § 51-3 (West 2015); POMS PR 05205.036. The statutory language in effect at the time Claimant and Mr. P~ were married is consistent with the current language. POMS PR 05205.036 (citing Ivery v. Ivery, 129 S.E.2d 457, 461 (N.C. 1963) (discussing the statutory language in effect in the 1960s)).

    Accordingly, a person under the age of consent lacks capacity to enter into a valid marriage without parental consent. However, “[n]o marriage followed by co-habitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in [N.C. Gen. Stat. Ann. § 51-3]…except for bigamy.” See N.C. Gen. Stat. Ann. § 51-3 (West 2015). Given these exceptions, the Supreme Court of North Carolina has held that “the word ‘void’ used in the statute, will be construed to mean ‘voidable,’ thus rendering the marriage valid until it has been declared void by a court of competent jurisdiction in an action directly attacking the validity of the marriage.” Ivery, 129 S.E.2d at 462 (N.C. 1963); POMS PR 05205.036.

    Furthermore, the Supreme Court of North Carolina has held that where a marriage is voidable because one of the parties was underage at the time of the marriage, the “marriage may be ratified by the subsequent conduct of the parties in recognition of the marriage.” Ivery, 129 S.E.2d at 462. The parties may ratify the marriage by living together after the underage participant reached the age of consent. See Sawyer v. Slack, 146 S.E. 864, 865 (N.C. 1929); see also POMS PR 05205.036 (citing N.C. Op. Att’y Gen. Op., 2001 WL 1712684, at *1 (questioning whether underage marriages can be declared invalid when ratified by cohabitation after the underage participant reached the age of consent)).

    Accordingly, under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, where Claimant married Mr. P~ prior to obtaining the legal age of consent, without parental consent, and a child was born during the marriage, the marriage between Claimant and Mr. P~ cannot be declared void. In addition, the parties ratified the marriage by living together after Claimant reached the age of consent. Therefore, Claimant and Mr. P~ were lawfully married under North Carolina law.

  3. Claimant’s Marriage to the NH Is Not Valid Under New York Law

    1. Polygamy

      The Record indicates that claimant and the NH were married by a city clerk in New York on November XX, XXXX. At that time, Mr. P~ was still alive.

      Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (McKinney 2015), and the marriage is solemnized by a city clerk. N.Y. Dom. Rel. Law § 11 (McKinney 2015). Because Claimant and the NH apparently properly obtained and delivered their marriage license prior to having their marriage solemnized by a city clerk, New York would normally recognize that Claimant and the NH entered into a valid, ceremonial marriage on November XX, XXXX.

      It is well-established New York law that when a court is confronted with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to the second marriage. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Meehan’s Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued”); POMS PR 05005.035. Furthermore, the presumption of validity of the second marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” Grabois, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate “a particular public policy such as upholding legitimacy, favoring the participation in the decedent’s estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise.” Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow’s social security benefits) Accordingly, Claimant’s marriage to the NH is presumptively valid under New York law.

      However, it is also well-established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See POMS PR 05005.035, Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). New York Domestic Relations Law states that “a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living....” N.Y. Dom. Rel. Law § 6 (McKinney 2015). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914). Thus, the presumptive validity of Claimant’s marriage to the NH may be rebutted, where here, Claimant has admitted that she was married to Mr. P~ , never sought a divorce from Mr. P~ , Mr. P~ was alive at the time of her marriage ceremony with the NH, and she was listed as Mr. P~ ’s surviving spouse on Mr. P~ ’s death certificate.

      Here, we do not believe a New York court would find that the balance of equities tips in favor of validating Claimant’s marriage to the NH. Plaintiff testified that she never sought a divorce from Mr. P~ . Further, no particular public policy, such as preserving the legitimacy of children, would be served by validating Claimant’s marriage to the NH, where Claimant and the NH have no children together , but Claimant has a child from her first marriage. See Dolan, 381 F.2d at 237. Additionally, the NH is still living, so the policy of favoring the participation of the putative spouse in the decedent’s estate would not yet be relevant. Further, voiding the second marriage will not prevent Claimant from obtaining benefits, as is discussed below.

    2. Claimant’s Relationship to the NH as his Wife Cannot Be Established Through a Common-Law Marriage

      New York does not recognize common-law marriages entered into in its own state. See Baron v. Suissa, 906 N.Y.S.2d 50, 51 (N.Y.A.D. 2 Dept. 2010) (citing N.Y. Dom. Rel. Law § 11). Accordingly, Claimant cannot alternatively argue that while not validly married to the NH prior to or after Mr. P~ ’s death, she had nonetheless subsequently entered into a common-law marriage with the NH under the laws of New York.

  4. Claimant’s Relationship to the NH as his Wife May Be Established Through a Deemed Marriage

    Another way under the Act that Claimant’s relationship as a wife of the insured NH can be established is via a deemed marriage. Under section 216(h)(1)(B) of the Act, where a woman and a worker went through a marriage ceremony which resulted in a purported marriage between them, such purported marriage may be considered a valid marriage for purposes of section 216(b) if the woman in good faith went through a marriage ceremony with the worker not knowing of a legal impediment which made the marriage invalid and the legal impediment resulted from the continued existence of a prior marriage of either party, arose out of the dissolution of the prior marriage, or from a procedural defect in the woman's ceremonial marriage to the worker; and she was living in the same household with the worker when her application was filed. 20 C.F.R. § 404.346; POMS GN 00305.055; Social Security Ruling (SSR) 67-58.

    POMS GN 00305.055C lays out the steps the Agency must take to determine whether a relationship is a deemed marriage. First, for a ceremonial marriage, the Agency must obtain proof of the marriage. Here, Claimant and the NH have provided proof of a marriage ceremony. Next, to determine good faith, the Agency must obtain signed statements from all involved parties, including the claimant and the NH, and the prior spouse if still living. Claimant’s statement must include why she believed her marriage ceremony was valid at the time of the ceremony, what she knew of the prior marriage’s dissolution, and why she did not believe any restrictions for remarrying applied. The NH’s statement must include information similar in nature to Claimant’s statement. Here, there are signed statements in which Claimant has repeatedly stated that that she did not believe her marriage to Mr. P~ to be valid. There is also evidence that Claimant denied having been married on her marriage license and listed her

    maiden name D~ as her surname. However, Claimant not only used the last name P~ to adopt her grandchildren, but also used it at the time she applied for wife’s insurance benefits. It is unclear why she would use that name if she thought her previous marriage was invalid. Additionally, none of the statements indicate what NH knew at the time of his marriage ceremony to Claimant about her previous marriage to Mr. P~ . In addition to these factors, the agency must consider Claimant’s age, education, and experience when determining good faith. POMS GN 00305.055C.

    Accordingly, an adjudicator can establish a deemed marriage, assuming the requisite factors are met. Given the additional development issues required, we defer judgment to you as to whether the required factors for a deemed marriage were met.

CONCLUSION

In sum, it is our opinion that Claimant may be entitled to wife’s benefits on the NH’s account, based on a deemed marriage to the NH, assuming Claimant meets all other eligibility requirements for wife’s benefits. However, before finding a deemed marriage between Claimant and the NH, we recommend further development of the record on the issue of whether Claimant acted in good faith in entering into marriage with the NH.

B. PR 15-146 Validity of North Carolina Marriage for Purposes of Eligibility for Child’s Insurance Benefits

Date: June 12, 2015

1. Syllabus

NH was domiciled in North Carolina when Claimant applied for CIB on NH’s earnings record, therefore, we look to North Carolina law to determine whether Claimant’s marriage is valid. The New Haven County register of deeds confirmed that Claimant obtained a marriage license. Both Claimant and spouse provided statements that they went through a marriage ceremony. Claimant’s spouse stated that she entered the marriage believing she was married, and Claimant reported that following the marriage, he and his spouse lived as husband and wife until 2013. The Claimant has provided evidence of a ceremonial marriage followed by cohabitation and a reputation as husband and wife. Such evidence establishes the presumption of a ceremonial marriage and under North Carolina law, proof of a ceremonial marriage creates a presumption that the marriage was valid. Claimant is validly married for determining his eligibility for CIB on NH’s earnings record. Because Claimant’s marriage is valid, however, the application of SSA’s putative marriage policy is inapposite to Claimant’s case.

2. Opinion

QUESTION

You asked whether a claimant’s North Carolina marriage is valid for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The claimant’s marriage is valid for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

BACKGROUND

According to the information provided, the Social Security Administration (SSA) found V~ (Claimant) entitled to Supplemental Security Income and CIB on his mother’s earnings record in March 2000. Claimant and Ms. K~ reported going through a marriage ceremony performed by a minister in New Hanover County, North Carolina on February XX, XXXX. Unbeknownst to the couple at the time, however, the minister never returned the marriage license to the County’s register of deeds following the ceremony.6 Additionally, according to Claimant, the minister did not sign the marriage certificate. Claimant also reported he and Ms. K~ lived as husband and wife following the marriage ceremony. Ms. K~ indicated she entered the marriage ceremony believing she would be married to Claimant.

In July 2010, SSA terminated Claimant’s CIB on his mother’s record effective February 2010. Claimant and Ms. K~ reported they separated in 2013. The information provided does not include evidence of a divorce or annulment. In February 2015, Claimant filed for CIB on the earnings record of his father B~, the number holder (NH). NH was residing in North Carolina and receiving Disability Insurance Benefits when Claimant applied for CIB.

DISCUSSION

To be eligible for CIB, a claimant must be unmarried. See Social Security Act (Act) § 202(d)(1)(B); 20 C.F.R. § 404.350(a)(4) (2015);7 Program Operations Manual System (POMS) DI 10115.001.C. A claimant who has been married is considered unmarried at the time of filing an application if the marriage: (1) was void or (2) has been terminated by annulment, divorce, or death. See POMS RS 00203.020.A.1. The Act and regulations do not expressly address which law applies to determine a claimant’s marital status to an individual other than the number holder. However, subsumed within the question of whether a claimant is entitled to CIB on the number holder’s earning record is the question of whether the claimant was married to another individual. Therefore, we infer from the Act and regulations on which State law determines marital status that the law of the State in which a number holder was domiciled when the claimant applied for CIB would also determine the claimant’s marital status to another individual. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345, 404.723; see also, e.g., Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983) (stating the “appropriate criterion for evaluating a claimant's eligibility for widow’s insurance benefits is determined according to the law of the insured’s domicile at the time of his death” and analyzing under the law of the number holder’s domicile whether the claimant was married to someone other than the number holder when the number holder died). NH was domiciled in North Carolina when Claimant applied for CIB on NH’s earnings record. Therefore, we look to North Carolina law to determine whether Claimant’s marriage is valid.

1. North Carolina Marriage Law

Under North Carolina law, a valid marriage is created when two persons who may lawfully marry consent to marry in the presence of one another either . . . in the presence of an ordained minister, a minister authorized by a church, or a magistrate, and the minister or magistrate consequently declares that the persons are married. . . . See N.C. Gen. Stat. Ann. § 51-1 (West 2015). “To constitute a valid marriage in [North Carolina], the requirements of [N.C. Gen. Stat. Ann. § 51-1] must be met.” State v. Lynch, 272 S.E.2d 349, 353 (N.C. 1980).

Additionally, no person authorized to solemnize a marriage shall perform a marriage ceremony without (1) a marriage license signed by the register of deeds (or a lawful deputy or assistant) of the county in which the marriage license was issued and (2) at least two witnesses to the marriage ceremony. See N.C. Gen. Stat. Ann. § 51-6 (West 2015). A minister who performs a marriage but fails to return the license to the register of deeds within ten days after the ceremony is guilty of a misdemeanor and may be subject to a $200 penalty. See N.C. Gen. Stat. Ann. § 51-7 (West 2015). Nevertheless, a “marriage is not invalid because solemnized without a marriage license or under an illegal license.” Wooley v. Bruton, 114 S.E. 628, 629 (N.C. 1922) (citations omitted); see POMS GN 00305.005.B.3 (noting that a “marriage may be valid under state law despite the fact that the parties to the marriage did not secure a license”).

Moreover, in North Carolina, only bigamous marriages are void; all other marriages are merely voidable. See Mussa v. Palmer-Mussa, 731 S.E.2d 404, 408 (N.C. 2012); Fulton v. Vickery, 326 S.E.2d 354, 358 (N.C. Ct. App. 1985). While a void marriage is a nullity that may be impeached at any time, “[a] voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding.” Pridgen v. Pridgen, 166 S.E. 591, 593 (N.C. 1932). Although North Carolina has no statutory law on how to obtain an annulment, the Supreme Court of North Carolina has held that “[a]n action to annul a marriage for statutory reasons is in the nature of an action for divorce.”8 Sawyer v. Stack, 146 S.E. 864, 865 (N.C. 1929). An action for divorce is made by filing a complaint in state court. See N.C. Gen. Stat. Ann. § 50-8 (West 2015).

2. SSA Evidentiary Requirements

As proof of a valid ceremonial marriage, SSA prefers either an original certificate of marriage or a certified copy of a public or religious record of marriage. See 20 C.F.R. § 404.725(b)(2); POMS GN 00305.020.A. Where SSA cannot obtain preferred proof of a ceremonial marriage, SSA will accept other convincing evidence of a marriage. See 20 C.F.R. § 404.725(c); POMS GN 00305.025; POMS GN 00305.030. Secondary proof of a ceremonial marriage may include a statement from the claimant describing the ceremony and other documentary evidence of probative value establishing a ceremony took place. See POMS GN 00305.025.B.

When SSA cannot obtain secondary proof of a ceremonial marriage, a presumption of a ceremonial marriage may arise when a ceremonial marriage is alleged and it is accompanied by cohabitation and repute. See POMS GN 00305.030.A. North Carolina courts have held that “upon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.” Pickard v. Pickard, 625 S.E.2d 869, 872 (N.C. Ct. App. 2006) (quoting Kearney v. Thomas, 33 S.E.2d 871, 876 (N.C. 1945)) (quotation marks and brackets omitted).

3. Analysis of Claimant’s Case

Claimant provided neither preferred evidence nor secondary proof of a ceremonial marriage.9 See 20 C.F.R. § 404.725; POMS GN 00305.020.A; POMS GN 00305.025.B. Nevertheless, the information contains convincing evidence to establish the presumption of a valid ceremonial marriage. See 20 C.F.R. § 404.725(c); POMS GN 00305.030.A.

The New Haven County register of deeds confirmed that Claimant obtained a marriage license. Both Claimant and Ms. K~ provided statements that they went through a marriage ceremony on February 6, 2010.10 Ms. K~ stated that she entered the marriage believing she was married, and Claimant reported that following the marriage, he and Ms. K~ lived as husband and wife until 2013. Thus, Claimant has provided evidence of a ceremonial marriage followed by cohabitation and a reputation as husband and wife. Such evidence establishes the presumption of a ceremonial marriage, see POMS GN 00305.030.A, and under North Carolina law, proof of a ceremonial marriage creates a presumption that the marriage was valid. See Pickard, 625 S.E.2d at 872.

Nothing in the information provided indicates Claimant and Ms. K~ ’s marriage did not satisfy the requirements of N.C. Gen. Stat. Ann. § 51-1 for consent by the parties and marriage by an authorized minister. See Lynch, 272 S.E.2d at 353. The County register of deeds confirmed Claimant obtained a marriage license. Although the evidence does not include a copy of the marriage license, there is no indication the minister did not have a license at the time he solemnized Claimant and Ms. K~ ’s marriage.11 While the minister’s failure to return the license to the register of deeds may make him culpable under N.C. Gen. Stat. Ann. § 51-7, nothing in § 51-7 addresses the validity of a marriage following such an omission.

Even if Claimant and Ms. K~ ’s marriage was voidable for lack of a registered license, their marriage would still be valid until annulled via a court action. See Mussa, 731 S.E.2d at 408; Pridgen, 166 S.E. at 593; Sawyer, 146 S.E. at 865; see also N.C. Gen. Stat. Ann. § 50-8. While Claimant and Ms. K~ separated in 2013, nothing in the evidence indicates they terminated the marriage by annulment or divorce. Thus, for purposes of Claimant’s eligibility for CIB, he and Ms. K~ are validly married under North Carolina law. See Act § 202(d)(1)(B); 20 C.F.R. § 404.350(a)(4); POMS DI 10115.001.C.

You also asked whether North Carolina allows for inheritance rights as a spouse for the putative marriage between Claimant and Ms. K~ . A putative marriage is a relationship in which a party to a void marriage may acquire inheritance rights as a spouse based on the party’s good faith belief in the existence of a valid marriage. See Act § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.344, 404.345; POMS GN 00305.085.A.1; POMS RS 00203.020.A.2.a. Because Claimant’s marriage is valid, however, the application of SSA’s putative marriage policy is inapposite to Claimant’s case.

CONCLUSION

Claimant is validly married for determining his eligibility for CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: ___________________

Owen Keegan

Assistant Regional Counsel

C. PR 14-076 Whether New York Domestic Partnership Entitles Claimant to Lump Sum Death Payment on Deceased Number Holder’s Earnings Record – North Carolina

DATE: April 15, 2014

1. SYLLABUS

A claimant may be eligible for the lump sum death payment if the claimant is the widow of an individual who died a fully or currently insured individual. A claimant may qualify as the widow of an insured individual if she was validly married to the insured individual under the laws of the State where the insured was domiciled when the insured died. Claimant did not allege she and NH were married, nor did she provide any evidence of a marriage. The New York domestic partnership certificate does not establish a marriage between the claimant and the number holder in this case and does not demonstrate the claimant is entitled to the lump sum death payment on the number holder’s earnings record.

2. OPINION

QUESTION

You asked whether a New York certificate of domestic partnership between the claimant and the number holder’s is evidence of marriage for determining Claimant’s entitlement to the lump sum death payment on the number holder’s earnings record.

OPINION

The domestic partnership certificate does not establish a marriage between the claimant and the number holder in this case and does not demonstrate the claimant is entitled to the lump sum death payment on the number holder’s earnings record.

BACKGROUND

According to the information provided, E~ (Claimant) and D~, the number holder (NH), registered as domestic partners on November XX, XXXX, in New York. NH’s death certificate indicates he died on September XX, XXXX, while domiciled in North Carolina. Claimant has applied for the lump sum death payment on NH’s earnings record.

DISCUSSION

A claimant may be eligible for the lump sum death payment if the claimant is the widow of an individual who died a fully or currently insured individual. See Social Security Act (Act) § 202(i); 20 C.F.R. §§ 404.390, 404.391 (2013).12 A claimant may qualify as the widow of an insured individual if she was validly married to the insured individual under the laws of the State where the insured was domiciled when the insured died. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345. 13 However, Claimant did not allege she was married to NH. She merely provided a certificate of domestic partnership from New York as evidence of a relationship with NH. Thus, Claimant would not be entitled to the lump sum death payment on NH’s earnings record. See 20 C.F.R. §§ 404.345, 404.390, 404.391; see also Program Operations Manual System GN 00305.005 (identifying the types of marriages the agency will consider in determining whether a claimant qualifies as a spouse).

Moreover, North Carolina appears to establish a distinction between marriage and other unions such as domestic partnerships. North Carolina’s Constitution states: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” N.C. Const. art. XIV § 6; see also N.C. Gen. Stat. Ann. §§ 51-1, 51-6 (requiring for a valid marriage: lawful consent between two marriageable people, solemnization by a duly authorized individual, a license of marriage, and two witnesses to the ceremony). As noted above, Claimant did not allege she and NH were married, nor did she provide any evidence of a marriage. 14 Accordingly, based on the evidence provided, Claimant would not be entitled to the lump sum death payment on NH’s earnings record.

CONCLUSION

Claimant and NH’s domestic partnership would not entitle Claimant to the lump sum death payment on NH’s earnings record.

Sincerely,
Mary Ann Sloan

Regional Chief Counsel
By:______________________
Owen Keegan
Assistant Regional Counsel

D. PR 09-132 Eligibility for Widow's Insurance Benefits as a Surviving Divorced Spouse Number Holder - Orville Claimant - Rozann

DATE: July 9, 2009

1. SYLLABUS

A Dominican divorce between two parties neither of which are domiciled in the Dominican would not be recognized as valid by the Courts of North Carolina. The parties were residents of North Carolina at the time of divorce and thereafter. North Carolina Courts would also find that the Dominican divorce is against North Carolina's public policy requiring the parties to live separate and apart for a year or more before obtaining a divorce. Therefore, the claimant cannot be find eligible for widow's benefits as a surviving divorced wife on the account of the number holder.

2. OPINION

QUESTION

You asked whether a claimant validly divorced her second husband in the Dominican Republic so as to qualify for widow's insurance benefits as a surviving divorced spouse of her first husband, the number holder, who was a resident of North Carolina at the time of his death.

OPINION

We believe a Social Security Administration (SSA) adjudicator could not find the claimant eligible for widow's insurance benefits as a surviving divorced spouse of the number holder because the Dominican Republic divorce from her second husband is invalid under North Carolina law.

BACKGROUND

Rozann (Claimant) and Orville (NH), married on May 4, 1968, in South Carolina. Claimant divorced NH on August 11, 1995, in North Carolina. NH died on February 4, 2006, in North Carolina. Claimant married Ernest on February 9, 2002, in North Carolina. Claimant and Ernest went to the Dominican Republic on February 6, 2009, and on February 9, 2009, both personally appeared before a Dominican court judge who issued a final divorce decree. Claimant was sixty-five years of age at the time she sought the divorce in the Dominican Republic. The Dominican divorce decree acknowledges Claimant and NH were married, resident, and domiciled in North Carolina at the time of the alleged divorce. Claimant and her second husband apparently continue to reside at the same North Carolina address as before the issuance of the Dominican divorce decree.

DISCUSSION

To be eligible for widow's insurance benefits under section 202(e) of the Social Security Act (Act), a claimant who is not the widow of an insured individual must be the insured individual's "surviving divorced wife" as that term is defined at section 216(d) of the Act. See Act §§ 202(e)(1), 216(d)(2), 42 U.S.C. §§ 402(e)(1), 416(d)(2); 20 C.F.R. § 404.336 (2009). A claimant can qualify as the surviving divorced wife of an insured individual if she was married to the insured individual for a period of ten years immediately before the date the divorce became effective, is at least sixty years old, applied for benefits, is not entitled to an old age benefit that is equal to or larger than the insured person's primary insurance amount, and is unmarried. See Act §§ 202(e)(1), 216(d); 20 C.F.R. §§ 404.336.

The question you raise is whether Claimant is unmarried, i.e., divorced from her second husband, as required to obtain divorced spouse's benefits. See Act § 202(e)(1)(A), 20 C.F.R. § 404.336(e). The Act and regulations do not address which laws apply to determine the validity of a divorce. To determine whether a claimant and a deceased, insured individual were validly married, SSA looks to the laws of the state where the insured had a permanent home when he died. See Act § 216(h)(1)(A)(i), 20 C.F.R. § 404.345 (2009). Although the validity of the marriage and divorce of Claimant and NH are not at issue here, the essential events occurred in North Carolina: the divorce of Claimant and NH, the location of NH's permanent home at his death, and the marriage and residence of Claimant and her second husband at the time of the alleged divorce and subsequent to the alleged divorce.

The Program Operations Manual System (POMS) explains how SSA determines the validity of a divorce. See POMS GN 00305.170. "A divorce is valid if it was granted by the court in whose jurisdiction at least one of the parties was domiciled at the time of the divorce." POMS GN 00305.170(A)(1). However, "a divorce will be held invalid if it is found not valid according to the law of the worker's domicile at the time of his/her death or at the time of filing an application for spouse's benefits." POMS GN 00305.170(A)(2). The POMS also indicates a divorce is likely invalid when the evidence indicates neither party was a resident of the country in which the divorce was granted and a party went to the jurisdiction solely for the purpose of obtaining a divorce. See POMS GN 00305.170(A).

Based on the above, we believe the relevant inquiry is whether the Dominican divorce decree is valid under North Carolina state law. North Carolina statutes do not appear to specifically address the effect of a divorce obtained in another jurisdiction. However, case law is on point. The Supreme Court of the United States, in considering a case arising out of North Carolina, held that a state need not recognize foreign divorce decrees of parties domiciled in one state, but who received a divorce decree in a state other than that of their domicile. See Williams v. North Carolina, 325 U.S. 226, 238-39 (1945) ("We conclude that North Carolina was not required to yield her State policy because a Nevada court found that petitioners were domiciled in Nevada when it granted them decrees of divorce. North Carolina was entitled to find, as she did, that they did not acquire domicils in Nevada and that the Nevada court was therefore without power to liberate the petitioners from amenability to the laws of North Carolina governing domestic relations."). The Court had before it a judgment of the Supreme Court of North Carolina which recognized that domicile of at least one of the parties in the state where and when the proceedings were instituted is essential in a divorce action. See State v. Williams, 29 S.E.2d 744, 750 (N.C. 1944). The North Carolina court held Nevada divorce decrees were "ineffectual to sever the marriage ties" because the parties were domiciled in North Carolina when they brought their actions for divorce in Nevada. Id. at 751.

North Carolina also has held that a divorce obtained in a foreign country is ineffectual when the parties are domiciled in North Carolina. In Mayer v. Mayer, 311 S.E.2d 659, 664 (N.C. Ct. App. 1984), review denied, 321 S.E.2d 140 (N.C. 1984), the court declared a Dominican divorce invalid. See Atassi v. Atassi, 451 S.E.2d 371, 374 (N.C. Ct. App. 1995) (describing M~ as North Carolina's seminal case on the recognition of divorces obtained in foreign countries). The M~ court noted the full faith and credit clause of the United States Constitution had no application to foreign judgments. See M~, 311 S.E.2d at 663. The court also noted a court could recognize a foreign divorce based on principles of comity, but recognition of the divorce may be withheld when the foreign court lacked a sufficient jurisdictional basis or the divorce violated the public policy of the state. See id. at 663-64.

In applying principles of comity, the court found the divorce invalid on both jurisdictional grounds and public policy grounds. See id. at 664. The court noted the Dominican court had no jurisdiction over the parties because neither party had any connection with the Dominican Republic other than the wife's five-day stay there to obtain the divorce. See id. The court concluded by noting "The great weight of authority in this country is that divorces granted in foreign countries to persons who are domiciliaries of the United States are not valid and enforceable." Id. at 664. The court also concluded the Dominican divorce decree offended "this State's public policy against the hasty dissolution of marriages" embodied in the laws of North Carolina governing divorce which require "proof that the parties had lived separate and apart for one year or more." Id. at 664-65; see N.C. Gen.Stat. Ann. § 50-6 (West 2009).

In this case, both Claimant and her second husband were residents of North Carolina at the time of the purported divorce in the Dominican Republic, and apparently thereafter, and the Dominican divorce decree even specified as much. The evidence indicates the parties went to the jurisdiction solely for the purpose of obtaining a divorce. Thus, we believe a North Carolina court would conclude the Dominican divorce decree is invalid on jurisdictional grounds. In addition, we believe a North Carolina court would find that the Dominican divorce in this case is against North Carolina's public policy requiring the parties to live separate and apart for a year or more before obtaining a divorce. See N.C. Gen.Stat. Ann. § 50-6; M~, 311 S.E.2d at 665. Therefore, we believe North Carolina would not recognize Claimant's Dominican divorce. This conclusion is also consistent with POMS GN 00305.170(A), which indicates a divorce is likely invalid when the evidence indicates neither party was a resident of the country in which the divorce was granted and a party went to the jurisdiction solely for the purpose of obtaining a divorce.

CONCLUSION

We believe a North Carolina court would conclude the Dominican divorce is invalid and Claimant is not unmarried. Therefore, an SSA adjudicator could not find Claimant eligible for widow's insurance benefits under section 202(e) of Act as a surviving divorced wife on the account of NH.

Sincerely,
Mary Ann Sloan

Regional Chief Counsel
By:______________________
Haila N. Kleimann
Assistant Regional Counsel


Footnotes:

[1]

The Center for Program Support (CPS) provided this office with the following documents: Claimant’s Application for Wife’s Insurance Benefits; SSA-795 statements from Claimant and the NH; SSA-5002 Report of Contact; Marriage Certificate for Claimant and Mr. P~ ; Marriage Certificate for Claimant and the NH; Death Certificate for Mr. P~ ; SSA-3 signed by the NH. This opinion is based on the facts as presented.

[2]

In a June 20, 2013 statement to SSA, Claimant indicated that while her birth certificate stated that she was born D~, she had always gone by the name D~.

[3]

In June 20, 2013 statements to SSA, Claimant and the NH stated that they married on November XX, XXXX, and on July 2, 2013 statements to SSA, Claimant and the NH stated that they married on November XX, XXXX. However, their marriage certificate indicates that the correct date of their marriage is November XX, XXXX.

[4]

According to Claimant, she also went by the name P~ in order to adopt her grandchildren.

[5]

Claimant and Mr. P~ were married by a justice of the peace. The office of justice of the peace was later abolished in each county upon the establishment of a district court therein. See N.C. Gen. Stat. Ann. § 7A-176 (West 2015).

[6]

. In December 2014, SSA verified with the New Haven County register of deeds that Claimant obtained a marriage license, but the license expired and the marriage certificate was never filed.

[7]

All references to 20 C.F.R. are to the 2015 version.

[8]

Moreover, at least one of North Carolina’s divorce statutes appears to contemplate that individuals may file actions for an annulment as well. See N.C. Gen. Stat. Ann. § 50-10(a) (West 2015) (stating that “the material facts in every complaint asking for a divorce or for an annulment shall be deemed to be denied by the defendant” (emphasis added)).

[9]

Although Claimant provided a statement that he went through a marriage ceremony, he did not describe the ceremony or provide any documentary evidence establishing a ceremony took place. See POMS GN 00305.025.B.

[10]

Claimant’s own statement that he went through a marriage ceremony particularly weighs in favor of finding a valid ceremonial marriage because for purposes of his eligibility for CIB, the statement is against his own interests. See 20 C.F.R. §§ 404.350(a)(4), 404.725(c).

[11]

. Even if the minister did not have a license at the time of the marriage ceremony, the lack of a marriage license would not invalidate the marriage. See Wooley, 114 S.E. at 629.

[12]

All references to 20 C.F.R. are to the 2013 version.

[13]

An individual may also qualify as a wife or widow for the purposes of receiving a lump sum death payment if she would be able to inherit a wife’s or widow’s share of the insured’s personal property if he were to die without leaving a will. See 20 C.F.R. § 404.345. However, under North Carolina law, only surviving spouses of intestates may inherit a wife’s or widow’s share of the intestate estate. See N.C. Gen. Stat. Ann. § 29-14(b) (West 2013). Thus, the only relevant inquiry is whether Claimant was married to NH, as discussed above.

[14]

Furthermore, although North Carolina will determine the validity of a marriage by looking to the law of the state with “the most significant relationship to the spouses and the marriage,” Fungaroli v. Fungaroli, 280 S.E.2d 787, 793 (N.C. Ct. App. 1981), Claimant has not presented any evidence she married NH in New York.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505005036
PR 05005.036 - North Carolina - 09/25/2015
Batch run: 09/25/2015
Rev:09/25/2015