SSR 81-2: SECTION 216(d)(2) (42 U.S.C. 416(d)(2)) WIDOW'S INSURANCE
BENEFITS -- SURVIVING DIVORCED WIFE -- DURATION OF MARRIAGE
20 CFR 404.336(a)(2)
The claimant, an applicant for surviving divorced wife's benefits, and
the decedent were married on November 28, 1940; and on the petition of the
decedent, a decree of divorce was entered by a Court of Common Pleas in
Pennsylvania on April 17, 1950. The claimant filed an appeal form that
decree; but on July 30, 1951, the Superor Court of Pennsylvania affirmed
the judgment of the Court of Common Pleas. Under Pennsylvania law,
however, the claimant remained married to the decedent until July 30,
1951, when the Superior Court made final disposition of her appeal.
Held, because the claimant was married to the decedent for at least
ten years immediately before the date on which the divorce became
effective, she is his "surviving divorced wife" as defined in section
216(d)(2) of the Social Security Act.
The only question for determination in this case is whether the claimant
was married to the decedent for the requisite period of time which would
entitle her to benefits under the Social Security Act (the Act).
The claimant filed an application for surviving divorced wife's benefits
on the earnings record of the decedent on February 13, 1979. She and the
decedent were married on November 28, 1940. A decree from a Court of
Common Pleas in Pennsylvania shows that the claimant and the decedent, on
his petition, were divorced on April 17, 1950. On June 7, 1979, the Social
Security Administration (SSA) issued Social Security Notice of Disapproved
Claim advising the claimant that she was not entitled to benefits because
she and the decedent were not married for at least 10 years before the
date of their divorce. On June 20, 1979, the claimant filed a request for
reconsideration indicating that she had filed an appeal from the decree of
divorce and that the divorce was not final until July 30, 1951, when the
Superior Court of Pennsylvania affirmed the judgment of the Court of
Common Pleas. On July 23, 1979, SSA issued a Social Security Notice of
Reconsideration affirming the prior determination that the claimant was
not entitled to surviving divorced wife's benefits on the earnings record
of the decedent. Dissatisfied with this determination, the claimant then
filed a request for hearing on August 6, 1979. She argued that where there
is an appeal from a decree of divorce, until disposition is made by the
Appellate Court, the parties remain married and reciprocal obligations
remain intact, citing Commonwealth v. Scott, 17 Adams Law Journal
12 (1975) and Appleton vs. Appleton, 9 Chester 126 (1959).
Section 216(d)(2) of the Act provides:
The term "surviving divorced wife" means a woman divorced from an
individual who has died, but only is she had been married to the
individual for a period of 10 years immediately before the date the
divorce became effective.
Under Pennsylvania case law, an appeal from a divorce decree to the
Superior Court suspends the effect of that decree. In a case involving
alimony during litigation, the Superior Court stated:
"When the court of common pleas has entered a decree of divorce an appeal
to this court is [a] right which, until it is disposed of, suspends for
all purposes the operation of the decree of the court below. The parties
are still husband and wife, and the action remains pending. There does not
seem to be any valid reason for holding that the necessity for the
maintenance of the wife ceases before the proceeding is finally disposed
of, merely because the court below has entered a decree which has been
absolutely superseded by the appeal." Ponthus v. Ponthus, 70 Pa.
Super. 39, 41-2 (1918). And in Commonwealth v. Scholl, 156 Pa.
Super. 136, 39 A.2d 719 (1944), the court also stated that an appeal
"suspends for all purposes the operation of the decree." (Both of these
cases are cited as precedent in Commonwealth ex. rel. Brown v.
Brown, Pa. Super. 386A.2d 15.)
In Commonwealth v. Kissinger, 4 D.&C. 109, 110, 111 (1923),
the court stated:
"We think it follows that when in this case an appeal was taken, which
appeal operates as a supersedeas, the judgment or decree in divorce
against Ina W. Kissinger was suspended, and that, therefore, the parties
still remain, in law, husband and wife. Literally speaking, 'supersedeas'
means a setting aside of the thing superseded; in this case that would be
a decree in divorce. Or if it is not technically set aside, it is at least
suspended, that is, prevented from going into effect, until the matter is
disposed of by the appellate court. To regard it otherwise would be
treating the appeal as virtually a nullity, so far as it affected the
legal relationship of the parties, and either party would be free to marry
again, even though the decree in divorce is suspended. While we know of no
Pennsylvania case on this point, we think no lawyer would advise his
client to incur the risk of a charge of bigamy by contracting a second
marriage while the appeal from a decree in divorce was pending; yet, if
the logic of the counsel for the respondent, Raymond Kissinger, in this
case is correct, either Kissinger or his wife would be free to marry at
the present time. If they are not free to marry, they are not divorced; if
they ar not divorced, they are husband and wife; if they are husband and
wife, the order of the Court of Quarter Sessions upon Raymond Kissinger,
the husband, for the support of his wife, Ina W. Kissinger, is still in
full force and effect. . . . We think the correct view of the situation is
that the Common Pleas judgment of divorce is suspended. As in a criminal
case, when an appeal operating as a supersedeas is taken, the judgment of
the court below cannot be carried out, and the legal rights of the parties
affected remain practically as they were before judgment was rendered.
(See also Commonwealth vs. Huston, 31 D.&C. 167)."
Under Pennsylvania law, the legal rights and responsibilities of marriage
continue until final disposition is made of an appeal from a divorce
decree. Therefore, the claimant and the decedent remained married until
July 30, 1951, when the Superior Court made final disposition of the
appeal from the divorce decree of the Court of Common Pleas. Accordingly,
the claimant was married to the decedent for more than the requisite 10
years (from November 28, 1940 to July 30, 1951), and is his "surviving
divorced wife" as defined in the Act.
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