SSR 72-11: SECTIONS 202(b) and 216(h)(2) (42 U.S.C. 402(b) and 42 U.S.C. 416(h)(2)). -- RELATIONSHIP -- VALIDITY OF DIVORCE -- DOMICILE OF WORKER -- LEGITIMACY OF CHILD

20 CFR 404.1101-404.1103

SSR 72-11

Where a worker, a resident of Kansas, filed a petition for divorce in Missouri, falsely alleging that he was a resident of Missouri and that defendant's address and whereabouts were unknown, and wife was constructively served by publication to which no answer was filed, and following the decree of divorce the worker continued to cohabit with his wife, resulting in the birth of a child, held, attempted divorce is void and child conceived by wife and worker after divorce while they were cohabiting as husband and wife is legitimate.

The worker, R, and his wife, B, were married in November 1946. While living together as husband and wife in Kansas, their State of domicile, R went to X County, Missouri, and obtained a divorce from B in 1950.

The court record shows that B was served by publication only and that she neither made an appearance nor filed an answer in the divorce action. In his petition, R false alleged that he was a resident of X County, Missouri, and that the whereabouts and address of B were unknown to him.

After this divorce, R and B continued to live as husband and wife and a child, C, was subsequently born to them. R died domiciled in Kansas, and thereafter an application was filed on C's behalf for child's insurance benefits.

Missouri law, section 506.160, RS Mo. 1959, V.A.M.S., sets forth the procedure for notification of nonresident defendants in an action for divorce in that State. In general, the statute requires that plaintiff file an affidavit that personal service cannot be made because the address is unknown, the whereabouts unknown, etc., whereupon publication of notice is made in a newspaper of general circulation upon order of the court. The court record shows no affidavit by R on which to base the publication.

Section 216(h)(2) of the Social Security Act provides, in part, that in determining whether an applicant is the child of an insured worker, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the worker is domiciled at the time the applicant files an application, or, if worker is dead, by the courts of the State in which he was domiciled at the time of his death.

The issue presented is whether the child, C, conceived after worker's divorce from the child's mother, and while they were cohabiting as husband and wife, may be considered his legitimate child for social security purposes and entitled to child's insurance benefits. This depends on the validity of the divorce between the child's parents.

The "full faith and credit" clause of the Federal Constitution does not require the courts of a State to recognize the validity of a divorce granted by a sister State unless at least one of the parties had established a bona fide domicile in such sister State and otherwise met all jurisdictional requirements at the time of the proceedings. Leichty v. Kansas City Bridge Co., 190 S.W. 2d 201, 203 (1945).

From the facts here shown, it is obvious that the worker's allegation that he did not know the whereabouts of B was false and fraudulent. It is a fraud on the court when a plaintiff in a divorce action makes a false allegation that defendant's whereabouts is unknown and secures service by publication. The decree of divorce, based on such publication, is void. It may be set aside on direct attack or may be disregarded since it is a nullity. 24 Am. Jur. 2d, Divorce §§ 446, 451, 478, and 480. Under such circumstances, a divorce is invalid under the laws of the jurisdiction in which granted and is also invalid in all other jurisdictions. Leichty, supra.

In accordance with the view that a divorce obtained without strict compliance with the Missouri statute governing service by publication is a nullity, are the following Missouri decisions: Cox v. Cox, 115 S.W. 2d 104 (1938); Orrick v. Orrick, 233 S.W. 2d 826 (1950); and Sigwerth v. Sigwerth, 299 S.W. 2d 581 (1957).

From the foregoing, it is clear that the divorce fraudulently obtained by R was void under Missouri law and would be treated as void by the courts of Kansas.

Therefore, R's marriage to B remained in effect. Accordingly, the child who was the issue of their cohabitation as man and wife is legitimate and, other requirements being satisfied, is entitled to child's insurance benefits.

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