Rescinded 1978
SSR 69-2: Section 202(b)(1)(D).—Wife's Insurance Benefits—Court Order for Support of Divorced Wife— Termination of Order Upon Remarriage
20 CFR 404.1105
SSR 69-2
Under New York law, a court order requiring a divorced husband to support his former wife ceases to have effect upon her remarriage and is not revived upon death of her later husband. Accordingly, where a worker's obligation to make weekly support payments to his divorced wife pursuant to a court order for support terminated upon the divorced wife's remarriage and subsequently the worker became entitled to old-age insurance benefits, there was no court order for support in effect within the meaning of section 202(b)(1)(D) of the Act at the time the worker became entitled to such benefits. Therefore, such individual's application for benefits as a divorced wife must be denied.
After nearly 30 years of marriage, claimant W, in 1929, obtained a final decree of divorce from the worker, R, in New York. The decree of divorce included an order for weekly support payments to W. This order was never amended or formally struck from the records. In 1949 W married H, whereupon R discontinued his support payments to her. R became entitled to old-age insurance benefits in May 1950. H died uninsured in 1963, therefore no survivor benefit was payable on his earnings record. In December 1965, W filed application for wife's insurance benefits under section 202(b)(1) of the Act, as amended, as the divorced wife or R.
Section 216(d)(1) of the Act 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.
R and W had been married for nearly 23 years at the time of her divorce in 1929, therefore, W meets the definition of "divorced wife" in section 216(d)(1), supra.
Section 202(b)(1) of the Act provides in pertinent part that the divorced wife (as defined in section 216(d) of an individual entitled to old-age insurance benefits may become entitled to a wife's insurance benefit if she—
(D) * * * 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—
* * * * * *
(ii) * * * at the time he became entitled to old-age insurance benefits * * *.
Under the facts of this case, it is clear that claimant was not receiving support payments from R at the time R became entitled to old-age insurance benefits in May 1950. Thus, the only question presented is whether under New York law, there was in effect at that time a court order for claimant's support.
Under New York law, the obligation of a former husband to support his divorced wife ceases when she remarries. Gaines v. Jacobsen, 308 N.Y. 218 (Ct. App. 1954), 124 NE 2d 290; Sleicher v. Sleicher, 251 N.Y. 366 (Ct. App. 1929), 167 NE 501. Section 248, New York Domestic Relations Law, permits a divorced husband, after the remarriage of his former wife who was entitled to support payments from him, to have the provisions for support stricken from the divorce judgment by motion to the court which granted the divorce. Under this New York statute, the granting of such a motion is mandatory. Kirkbride v. Van Noe, 275 N.Y. 244 (Ct. App. 1937), 9 NE 2d 852.
The courts of New York have also held that even though no such motion is filed by the former husband, the support provision is invalidated by the divorced spouse's remarriage and cannot be enforced by her after that time. Furthermore, the fact that W's second husband later died would not revive her first husband's obligation of support based on the prior support order, even though that order was never formally stricken from the court's records. Kahler v. Searl, 18 N.Y.S. 2d 246 (App. Div. 2d Dept. 1940), 259 AD 729.
Accordingly, it is held that the court order obligating R to support W, having terminated under New York law upon W's remarriage, was no longer in effect at the time R became entitled to old-age insurance benefits. Therefore, since none of the requirements of section 202(b)(1)(D) of the Act is met, W's application for benefits as a divorced wife must be denied.