Rescinded 1978

SSR 68-28: Sections 202(b)(1)(D) and 216(d)(1).—Wife's Insurance Benefits—Divorced Wife—Property Settlement Agreement as Support

SSR 68-28

Where a husband and wife entered into an agreement which stipulated that the husband was to transfer an automobile, furniture, securities and income therefrom to the wife, and she in return waived her right to alimony, where the agreement was incorporated by reference in a subsequent decree of divorce, and where the former husband made no subsequent payments to his former wife before his award of old-age insurance benefits, held, constitutes support under section 202(b)(1)(D) of the Act; therefore, since she did not receive one-half of her support from her former husband or substantial contributions toward her support from him pursuant to a written agreement, and did not have a court order requiring him to make substantial contributions for her support, the divorced wife is not entitled to wife's insurance benefits.

The worker, R, and his wife, W, were married in June 1924. In August 1963, they entered into a "stipulation and agreement" for the division of certain property. Under the agreement, W received an automobile, all household furniture, one-half of the stocks and bonds owned by the couple, the subsequent dividends payable thereon, and one-half of the mineral interests of the parties. In consideration of the property division, W expressly waived all right to alimony, dower, and future interest in R's property. The terms of this stipulation and agreement were incorporated into the final decree of divorce between R and W in September 1963.

R filed application and became entitled to old-age insurance benefits effective March 1965. Thereafter, W, then age 68, filed application in September 1966 for wife's insurance benefits under the provisions of section 202(b)(1)(D) of the Social Security Act, as amended. She contended that since she was being supported by the property received under the financial settlement and the proceeds therefrom, she thereby met the support requirements of the Act as a divorced wife.

Section 202(b)(1) of the Act as amended provides in pertinent part that wife's insurance benefits may be payable for months after August 1965 to a divorced wife of an individual entitled to old-age insurance benefits if she has filed application, has attained age 62, is not married, and:—

(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 * * *.

Section 216(d)(1) of the Act, as amended, 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.

The question thus presented is whether the proceeds of the property settlement between R and W having been used by W for her maintenance from the date of the divorce until the date of R's application, constitute "support" within the meaning of section 202(b)(1)(D) of the Act, cited above. All other requirements for entitlement were met, including the 20 years of marriage.

On the basis of the financial and property settlement between R and W, it is clear that no provision was made for alimony or contributions for the support of W. Indeed, one of the considerations for the settlement was that alimony, dower, and all future interests in the property of R were to be waived. The divorce decree incorporated the terms of the waiver, and although the decree states that the agreement "is in full settlement of all property rights and alimony between the parties," the agreement itself contained no provision for alimony.

With respect to any dividends which W may have received on the stock transfer to her, such dividends may not be considered as contributions to her support. This stems from the fact that R transferred the stock ownership to W at the time of their property settlement. Title to the stock and all benefits of ownership were thus invested in W. Thus, where R retained no control over, or right of reversion in, the stocks or the dividends therefrom, the dividend income was income received from W's own property and not from R.

Accordingly, as W has received from R no contributions for support since the divorce, it is held that at the time R became entitled to old-age insurance benefits in March 1965, W was not receiving one-half of her support from him, nor was she receiving substantial contributions from him pursuant to a written agreement, nor was there in effect a court order requiring R to make substantial contributions for her support; therefore, W is not entitled to wife's insurance benefits as the divorced wife or R.

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