Rescinded 1978


SSR 68-41: Section 202(b)(1).—Wife's Insurance Benefits-Divorced Wife-Effect of Foreign Ex Parte Divorce Decree on Court Order of Support

SSR 68-41

Under Illinois law, a decree for separate maintenance granted by a court pursuant to in personam jurisdiction of both parties is not automatically terminated upon the subsequent entry of an ex parte foreign divorce decree. Accordingly, where the worker was granted an ex parte divorce in Pennsylvania, which was silent as to support, nearly 8 years after an Illinois court, having in personam jurisdiction of both parties, had entered a decree of separate maintenance and ordered the worker to make substantial monthly payments to his wife, held, since under Illinois law the decree of separate maintenance continued in effect, notwithstanding the subsequent divorce decree, there was in effect at the time the worker became entitled to old-age insurance benefits, a court order for the divorced wife's support within the meaning of section 202 (b) (1) (D) of the Act.

After A, the worker became entitled to old-age insurance benefits, B filed an application in 1967 for wife's insurance benefits as A's divorced wife. With her application, B presented evidence that she had, after 20 years of marriage to A. been granted a decree for separate maintenance by an Illinois court. Under the decree, A was required to pay B a monthly amount (which was substantial under the circumstances of this case). The decree further indicated that the court had in personam jurisdiction of the parties.

Some 8 years after the Illinois decree for separate maintenance,, A bad obtained from a Pennsylvania court a decree of final divorce which was silent as to support. Although B received notice of the divorce action she neither appeared in person nor through counsel-in the divorce proceedings.

Section 202 (b) (1) (D) of the Act provides, among other requirements, that wife's insurance benefits may be payable to a divorced wife of an old-age insurance beneficiary, if at the time he became entitled, the divorced wife was then, receiving at least one-half her support from him, or was receiving substantial contributions from him under a written agreement, or, there was in effect a court order for substantial contributions for her support from him. See SSR 67-16 (April 1967).

Section 216 (d) (1) of the Act I as amended, provides that:

The term "divorced wife" means a woman divorced from an individual, but only if she had been married to such individual for a period of 20 years immediately before the date the divorce became effective.

Insofar as pertinent to this case, the question presented is whether B, divorced wife, meets the support requirement in section 202 (b) (1) (D), supra f or entitlement to wife s insurance benefits on the basis of the Illinois separate maintenance decree, notwithstanding the later Pennsylvania divorce decree. All other requirements for entitlement were met.

The Supreme Court of Illinois has held that the right to support will survive an ex parte foreign divorce and that such an ex parte divorce decree will not automatically terminate the separate maintenance decree. Pope v. Pope, 117 N.E. 2d 65 (Ill., 1954). (See also Schwarz v. Schwarz, 188 N.E. 2d-673, 677 (Ill., 1963).) The effect of the divorce decree was to en able the parties to contract a new marriage. It did not necessarily relieve them of all obligations of the former marriage. In the Pope case, the wife had filed a petition to recover past due support payments based on a support order which had been entered by an Illinois court. Subsequently to the support decree, the husband had obtained a default divorce decree in another State. The wife was there held entitled to recover the support payments due under the Illinois support order even though her husband had secured an ex parte divorce after entry of the support order. It seem clear, therefore, that under Illinois law, under the circumstances of & case, the Pennsylvania ex parte divorce decree did not terminate the earlier Illinois decree of separate maintenance and order for support.

Accordingly, it is held that at the time A became entitled to old-age insurance benefits, there was in effect a "court order" within the meaning of section 202(b) (1) (D) of the Act, requiring A to make substantial, contributions to B's support, and therefore, all other requirements having been met, B is entitled to wife's insurance benefits.

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