SSR 61-8. VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE
- Where the plaintiff in a divorce action did not intend to make Nevada his home nor to remain there permanently or indefinitely but went there solely for the purpose of obtaining a divorce, and where he obtained a divorce in Nevada through substituted service on the defendant, such divorce is invalid under the law of the State of New York; his wife retained legal status as his spouse under State law and, since all other conditions of entitlement were not met, she is entitled to social security benefits.
A and B were married in New York in 1916 and separated in 1937. They continued to reside in new York and A was still living and working in that State in 1946 when he went to Florida to obtain a divorce form B. When he found he could not readily meet the residence requirements for obtaining a divorce in Florida, he went to Nevada in July 1946 where he instituted a divorce action. Notice of this action was served on B solely by publication in a Nevada newspaper. B did not file any answer nor appear in court either personally or by attorney. A final decree of divorce was issued by the Nevada court in September 1946. A immediately returned to New York and continued to live and work in New York until he died domiciled in that State in September 1954. In June 1957, B applied for widow's insurance benefits on A's social security earnings record as his widow.
In order to be entitled to the widow's insurance benefits for which she applied, B must, among other requirements all of which she met, meet the requirement that she was A;s widow at the time of his death. Under section 216(h)(1) of the Social Security Act, as pertinent in this case, an applicant for benefits is the widow of an insured individual if the courts of the State in which such insured individual was domiciled at the time of death would find that such applicant and such insured individual were validly married at the time the insured individual died. It is necessary, therefore, to determine whether the courts of New York would find that B is A's widow. The resolution of this question depends on whether the courts of New York would recognize as valid the divorce obtained by A in Nevada.
Under the circumstances pertinent to this case, the full faith and credit clause of the Federal Constitution does not require the courts of New York to recognize the validity of the Nevada divorce decree unless A had established the existence of a bona fide domicile in Nevada at the time of the proceedings.
Under Nevada law, the plaintiff in a divorce action must show that, in addition to his physical residence in Nevada for the period required by statute, he intends to make that State his permanent home or, at least, to remain there for an indefinite period. Therefore, a decree of a Nevada court is void for lack of jurisdiction where the plaintiff, though physically present in Nevada for the required statutory period, had gone to Nevada solely for the purpose of securing a divorce and had no intention of remaining in that State permanently or for an indefinite time, if the service on the defendant of notice of the proceedings was limited to service by publication.
A must have satisfied the court that he had been physically present in Nevada for the required statutory period and must also have certified that he intended to make that State his permanent, or at least indefinite, residence. However, A originally went to Florida to secure a divorce and then, when he found he could not meet the residence requirements in that State, went to Nevada for the same purpose. The fact that A was living and working in New York immediately before the divorce action was instituted and immediately after the decree of divorce was issued, is evidence that he had no intention of becoming a permanent or indefinite resident of Nevada. Consequently, the Nevada court did not have jurisdiction to grant the divorce decree, and such decree is null and void and would not be recognized by the New York courts.
It is held, therefore, that B is A's legal widow and is entitled to the widow's insurance benefits for which she filed application.