Rescinded 1978

SSR 68-16: Section 202(e)(1)(D).—Widow's Insurance Benefits—Surviving Divorced Wife—Foreign Court Order of Support

SSR 68-16

Where a woman was divorced by the worker in 1948 in Pennsylvania, and she subsequently obtained in Italy a court order for support against the worker, who was still domiciled and residing in Pennsylvania, and process was not personally served upon such worker in Italy and he did not enter an appearance in the Italian proceedings, and where the Pennsylvania court refused the woman's petition to reopen the 1948 divorce judgment previously obtained by the worker, held, the Italian decree would not be enforceable in the United States and cannot be considered to have been in effect at the time of the worker's death in order to satisfy the support requirement of section 202(e)(1)(D) of the Act, as amended, to entitle the woman to widow's insurance benefits as the surviving divorced wife.

R and G were married in Italy in 1922. R, the worker, obtained a final decree of divorce from his wife, G, in Pennsylvania in 1948 after 26 years of marriage. At the time of the divorce and at all times thereafter R was domiciled in, and resided in, Pennsylvania. The Pennsylvania divorce decree contained no order for support (alimony). In 1952, F, who was then domiciled in Italy, obtained an order of support from an Italian court directing R to pay her a monthly amount considered to be substantial under the facts of this case. At the time of this action R was domiciled in Pennsylvania; he made no appearance and filed no answer. Service of process in connection with the Italian proceeding was not had upon R in Italy. In 1954, the Pennsylvania court refused G's petition to reopen the 1948 divorce judgment previously obtained by R. At the time of R's death in 1955 there was in existence no written agreement for the support of G and he had in fact made no contributions toward her support during the year preceding his death. Neither party had remarried. In November 1966, G filed application for widow's insurance benefits as R's surviving divorced wife.

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

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

Section 202(e)(1) of the Act provides in pertinent part that widow's insurance benefits are payable to a surviving divorced wife (as defined in section 216(d) of the Act) of a worker who died fully insured if she meets, among other requirements, a dependency test as follows:

(D) in the case of a surviving divorced wife who was not entitled to wife's insurance benefits on the basis of the wages and self- employed income of such individual for the month preceding the month in which he died, was receiving at least one-half of her support, as determined in accordance with regulations prescribed by the Secretary, from such individual, or was receiving substantial contributions from such individual (pursuant to a written agreement) or there was in effect a court order for substantial contributions to her support from such individual—

(i) at the time of his death * * *.

In order to be entitled to widow's insurance benefits as a surviving divorced wife, she must meet one of the support requirements as provided in section 202(e)(1)(D), supra, in addition to other requirements. Since R had in fact been making no contributions toward G's support at the time of his death, the question thus presented is whether the Italian court order for support here involved can be considered to be a court order for substantial contributions to support in effect at the time of R's death, as required by that provision of the Act.

In this case, R, who was domiciled and residing in Pennsylvania at the time such Italian court order was granted and at all times thereafter, was not personally served with process in Italy in connection with the proceeding therefor, nor did he personally appear in that proceeding. Because of this, such foreign court order would not be recognized and enforced in the United States, as courts in this country will not enforce such an in personam judgment granted under such conditions. Since such court order would not be enforceable in the United States against R, who at all pertinent times was domiciled in, and residing in, this country, such order cannot be considered to be a court order contemplated by section 202(e)(1)(D), supra, even if valid under Italian law. Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.ed. 565, 570 (1878); Hilton v. Guyot, 159 U.S. 113, 16 Sup. Ct. Rep. 139 (1895).

Accordingly, it is held that G does not meet the support requirements of section 202(e)(1(D) of the Act and, therefore, is not entitled to widow's insurance benefits as R's surviving divorced wife.

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