20 CFR 404.1104

SSR 72-62

This ruling distinguished from SSR 61-66, C.B. 1960-1961, p.27.

When final hearing on merits of petition for divorce was held September 28, 1971, and Judge in open court announced he would grant plaintiff-wife a divorce but worker died on October 8, 1971, prior to issuance and recordation of divorce decree, held, under law of South Carolina, wife was not divorced form worker at time of his death and is, therefore, entitled to widow's insurance benefits, provided other requirements are met.

W filed application for widow's insurance benefits following the death on October 8, 1971, of R, the worker. Evidence indicates that a final hearing for divorce between R and W was held on September 28, 1971, the divorce decree was signed October 13, 1971, and was recorded October 14, 1971, in the State of South Carolina. A portion of the transcript of proceedings in connection with the divorce hearing on September 28, 1971, before the court, states: " * * * I will grant you a complete and final divorce. * * *."

The question presented is whether the claimant was married to R on the date of his death. The specific issue is whether or not there was a valid divorce in existence under the laws of South Carolina between R and W at the time of R's death on October 8, 1971.

Under section 216(h)(1)(A) of the Social Security Act, an applicant is the widow of the worker if the courts of the State in which such insured worker is domiciled at the time of death would find either that he and she were validly married at the time he died, or that she would have the same status as a widow for the purpose of sharing in his intestate personal property.

The Supreme Court of South Carolina (R's State of domicile at time of death), in Elsie Case v. Wallace F. Case, 243 S.C. 447, 134 S.E.2d 394 (1965) considered a situation somewhat analogous to the present one. The plaintiff-wife had filed for divorce in October 1961. The transcript of the court hearing indicated that sufficient evidence was offered to support the granting of an absolute divorce to the plaintiff; however, no order or decree was ever signed. In September 1962 the defendant-husband moved the court to issue a divorce decree, but the wife had changed her mind and moved to dismiss her action. The appellate court affirmed the action of the lower court to permitting the plaintiff to withdraw her suit and held that no divorce judgment was ever granted. The court stated, in part:

The rendition of judgment is the judicial act of the court and the mode and sufficiency of rendering judgment is controlled by statute. Section 10-1510, Code of Laws of South Carolina, 1962 reads, in part, as follows: Upon the trial of a question of fact by the court its decision shall be given in writing * * *.

The court further stated:

In South Carolina as a general practice the Judge prepares his own Order or Decree or he may direct the attorneys to prepare the Order or Decree for his approval. It was said in Archer v. Long, 46 S.C. 292, 24 S.E. 83: Until the paper has been delivered by the judge to the clerk of the court, to be filed by him as an order in the case, it is subject to the control of the judge, and may by him be withdrawn at any time before such delivery.
In the case of Genobles v. West, 23 S.C. [154] 160, the circuit judge well says: "A judgment is the final determination of the rights of the parties in an action. while the written instrument purporting to be the judgment in a cause remains in the possession of the judge who is to pronounce it, it is of no effect, and like a deed not delivered. * * *." Even if as contended by defendant the trial Judge granted an oral divorce to plaintiff such pronouncement is not a final ruling on the merits nor is it binding on the parties until it has been reduced to writing, signed by the Judge and delivered for recordation. The Decree must be in writing and until such time the Judge may modify, amend or rescind such an oral Order.

In Bragg v. Thompson, 19 S.C. 572 (1883), the court held that a judgment rendered against a party at that time decreased, was void.

Again in Charles v. Citizens and So. Nat'l Bank of Atlanta, 225 Ga. 549, 170 S.E. 243 (1969) the Georgia supreme Court held: "An action for divorce and alimony is personal. The death of one of the parties before the decree abates the action. Thereafter the court no longer has jurisdiction to render a judgment therein."

Under similar circumstances, it appears the South Carolina Supreme Court would reach the same result. See 46 Am. Jur. 2d Sec. 91, page 376. See also 17 Am. Jur. 2d Sec. 462, page 572.

24 Am. Jur. 2d, Section 435, at page 559 states: "After the entry of an interlocutory judgment or decree, the status of the proceeding is that of a pending action and it abates on the death of either party before the final decree is granted. In the absence of specific statutory authority a final judgment of divorce cannot thereafter be rendered, and the court cannot avoid the effect of the rule by rendering judgment and ordering that it be entered as of a date prior to the death."

From the transcript of the testimony in W's action, it is apparent that no judgment or decree of divorce was rendered on September 28, 1971. At most the court's statement indicates an intention to grant the divorce at a later date. This had not been done prior to R's death on October 8, 1971.

The prior Social Security Ruling 61-66 related to a question of the effective date of a judgment of decree of divorce that had already been rendered. In the present case, no such judgment or decree had been rendered prior to the worker's death. The two rulings are, therefore, distinguishable.

Accordingly, it is held that W was not divorced from R at the time of his death, her marriage to him remained in effect, and she is entitled to the widow's insurance benefits for which she applied.

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