20 CFR 404.1101(c)(2)

SSR 70-33

Held, a default decree of divorce issued against an incorrectly named defendant, where jurisdiction is obtained by publication, is void under Illinois law. Further held, a nunc pro tunc order which later substituted the correct name of the defendant for the improper name has no effect on the initial failure to obtain proper service by publication and the divorce decree continues to be void for lack of jurisdiction and of no effect in determining the defendant's marital status.

R, the worker, filed application and became entitled to old-age insurance benefits beginning July 1966. W filed application as R's wife for wife's insurance benefits in November 1966, but final action as to her claim had not been completed by January 1967. In January 1967, the Administration received a second application for wife's insurance benefits filed on R's earnings record by X, a resident of Italy, who also alleged that she was his wife.

In support of her claim, X submitted evidence of marriage to R in 1919 and a certificate by local officials that such marriage was still valid and registered in the names "John M. Doe" and "Jane Doe."[1] While the parties had the same surname prior to marriage, they were not related by blood or marriage. R had immigrated to the United States in 1920 and established domicile in the State of Illinois, while X remained in Italy.

R contended that in October 1946, he obtained a divorce from X in Chicago, Illinois, and married his present wife, W, in March 1947. R and W have lived together in Illinois ever since the latter date. Subsequent to the second marriage, R and W discovered there was a defect in the divorce action in that X, who had been notified of the divorce action by publication as distinguished from personal service, was sued under the name of "Jane Smith," (a name she had never been known by) rather than her correct name of "Jane Doe." R made an effort to juridically correct the defect and a nunc pro tunc court order was entered in 1968 to show the defendant's correct name.

The basic issue is which of the claimants, X or W, has the necessary legal relationship to R, and thus has the status of his "wife" under the laws of Illinois, R's domicile, to qualify on R's earnings record for wife's insurance benefits. This, in turn, depends on whether or not the divorce obtained by R was valid.

Under the divorce laws of Illinois, one of the requirements of the statute authorizing service by publication in that State is that the defendant be named therein. smith-Hurd Illinois Annotated Statutes, Chapter 110, Section 14. Although there appears to be no Illinois case directly in point which considers the effect of a divorce decree based on a suit against an incorrectly named defendant where service was by publication, Illinois appears to follow the general rule that such a default decree is void. An Illinois appellate court has referred with approval to a Texas case in which it was held that constructive service in the maiden name of a married woman was invalid and thereby did not give the court jurisdiction to render a valid judgment. People v. Lipsky, 63 N.E.2d 642, 644 (Ill. App. 1945).

In Correll v. Greider, 92 N.E. 266 (1910) the Illinois Supreme Court said:

The role is to well established to require the citation of authorities that a party claiming the benefits of a decree upon constructive service must show a strict compliance with every requirement of the statute. Nothing less will invest the court with jurisdiction or give validity to the decree * * *

It is well settled principle of law that only a court having jurisdiction of the parties and the subject matter can decree a valid divorce. As a requisite to jurisdiction there must be service of process on the defendant, the function of service being to provide the defendant with notice of the action. Service may be either personal or constructive, as by publication. In the present case, while there was service by publication, it was sufficient to confer jurisdiction upon the court because the defendant was not properly named or identified in the publication, and had never been known by the name so published.[2]

Accordingly, the divorce based on jurisdiction obtained by publication is void and of no effect in determining X's status for social security purposes. Further, a nunc pro tunc order which later substituted the correct name of the defendant for the "misnomer" has no effect on the failure in the first instance to obtain proper service by publication and the divorce decree continues to be void for lack of jurisdiction and of no effect in determining the marital status of X. The divorce decree obtained by R in October 1946 was invalid as to X, and his marriage to W in 1947 was void. Therefore, it is held that under Illinois law, X is the legal wife of R and entitled to wife's insurance benefits, all other requirements being met. W's application must be disallowed.

[1] All names used herein are fictitious.

[2] See SSR 68-2, C.B. 1968, p. 59, in which personal service of process was made on defendant, and which held that misnomer did not exist under California law since the defendant raised no objection and filed an answer to the suit.

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