R married S in South Carolina on December 18 1954. They had a child together and moved to Nevada, where S passed away on September 5th 1960.
On September 15 1960, R filed an application for mother’s and child’s social security benefits based on her deceased husband’s earnings record. As part of her application R alleged that her deceased husband S had obtained a divorce from his first wife L in Nevada on November 2 1954.
At the time, Nevada law required that one of the parties to a divorce must have resided in Nevada for at least six weeks prior to filing for divorce, with the intent to make Nevada his or her permanent residence. The divorce decree contained a jurisdictional recitation stating that this residential requirement was met.
Subsequently, L filed an application in New York for a lump sum social security death benefit, alleging that she was S’s widow. She alleged that the Nevada divorce decree S had obtained was invalid.
L and S were married in June 1927 and lived together for many years in New York, where S had business interests.
L alleged that S had never truly resided in Nevada during their marriage and that, therefore, the Nevada Court did not have jurisdiction to enter the divorce decree.
As proof of her allegations, she provided evidence that for the years 1954 through 1957 S had filed joint tax returns with L, listing his address as 5 Main Street, Brooklyn, New York, which was the house he had formerly maintained with L.
She also provided evidence that about one week before he married R, S had made out a will naming his brother as executor and listing his residence as 18 First Avenue, New York City, which was a hotel of which he was part owner.
S had business interests in both New York and Nevada, and owned property and paid property taxes in both states.
All of this went to the issue of whether S was a bona fide resident of Nevada at the time he filed his divorce petition in 1954.
In order to determine whether R was S’s widow for social security purposes, federal regulations required the agency to look to the law in which S was domiciled at the time of his death.
The evidence showed that R and S had resided in New York until April 1957, when they moved to Las Vegas, Nevada. A child, J, was born to them in Nevada. S registered to vote in Nevada and paid property taxes in Nevada. S passed away in Nevada. He spent the majority of his time in Nevada the last two years of his life.
Although it could not be determined with absolute certainty what S’s intentions were with respect to his domicile, the abundant evidence showed that S was likely domiciled in Nevada at the time of his death. Nevada law, therefore, was determinative of whether or not R was his widow.
Under Nevada law, a divorce decree that contained a facially valid jurisdictional statement was not void, even if the residential requirement was not in fact met. At most, such a decree was voidable, meaning it could only be invalidated in a timely filed direct proceeding challenging its validity. Such a direct challenge must have been filed within six months after the entry of the decree.
Because S’s Nevada Divorce Decree was facially valid, it was not void, but merely voidable. His first wife, L, could only have the decree invalidated by a direct action (as opposed to a collateral action) brought within six months of the entry of the decree. She had not done so. Her collateral attack in a social security action several years later did not invalidate the decree.
Because S was validly divorced from L under Nevada law, R was considered his widow for social security purposes. She was entitled to mother’s and child’s social security benefits.
See Social Security Ruling (SSR) 65-4.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.
