20 CFR 404.350
Where claimant, divorced from worker after 20 years of marriage, received property settlement but no subsequent support, filed application for wife's benefits as divorced wife of worker in February 1971, an application on which no final decision was rendered prior to enactment of Social Security Amendments of 1972 (P.L. 92-603), held, claimant not entitled to wife's benefits prior to January 1973, effective date of change of law, since support provisions of former subparagraph (D) of section 202(b)(1) were not met.
The worker, R, married W in 1929 and divorced her in 1956. R became entitled to retirement insurance benefits in April 1968. W had received a property settlement from R under the divorce decree. In February 1971, W filed application for wife's benefits on R's account number.
The issue to be determined was whether W satisfied the support requirements of section 202(b) of the Social Security Act at the time R became entitled to retirement benefits.
Section 202(b)(1) of the Act provided, at the time of W's application for benefits, for payment of wife's benefits to a "divorced wife" if she filed application, was not married, was receiving at least one-half of her support . . . from the worker, 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 at the time he became entitled to old-age insurance benefits.
Section 216(d)(1) of the Act defines "divorced wife" as a woman divorced from an individual, but only if she has been married to him for a period of 20 years immediately before the date the divorce became effective.
Social Security Administration Regulations No. 4, section 404.350(b), provides that a person is receiving at least one-half of her support from the insured individual at a specified time if such individual, for a reasonable period (ordinarily 12 months) before the specified time, made regular contributions, in cash or in kind, to such person's support and the amount of such contributions equaled or exceeded one-half of such person's support during the period.
However, section 114 of Public Law 92-603 (Social Security Amendments of 19762, enacted October 30, 1972) struck out subparagraph (D) of Section 202(b)(1) of the Act, which had provided:
(D) In the case of a divorced wife, 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) if he had a period of disability which did not end before the month in which he became entitled to old-age or disability insurance benefits, at the beginning of such period or at the time he becomes entitled to such benefits, or (ii) if he did not have such a period of disability, at the time he became entitled to old-age insurance benefits, . . . .
Section 114 of Public Law 92-603 further provides that: "The amendments made by this section shall apply only with respect to benefits payable under title II of the Social Security Act for months after December 1972 on the basis of applications filed on or after the date of enactment of this Act." The provisions of the amendment are effective for payment of benefits for the month of January 1973 and thereafter based on applications filed on or after October 30, 1972.
Section 328(a) of the Social Security Amendments of 1965 revised section 202(j)(2) of the Act to provide as follows:
An application for any monthly benefits under this section filed before the first month in which the applicant satisfies the requirements for such benefits shall be deemed a valid application only if the applicant satisfies the requirements before the Secretary, or decision upon judicial review thereof, such applicant is found to satisfy such requirements, the application shall be deemed to have been filed in such first month.
In W's case, the fact is established that, other than a property settlement provided in the 1956 divorce decree, she received neither money nor support from R under a court decree, a written agreement, or through voluntary contributions.
Accordingly, since W did not receive at least one-half of her support from the worker or otherwise meet the support provisions of former section 202(b)(1)(D) of the Act, held, she is not entitled to wife's benefits prior to January 1973; however, on basis of her February 1971 application, on which the Secretary had not rendered a final decision, W is entitled to benefits, all other requirements being met, beginning with the month of January 1973.
Back to Table of Contents