20 CFR 404.1104

SSR 65-56

Where an order purporting to set aside a decree divorcing the worker from the woman claiming benefits as his widow is made by a court not having jurisdiction to make such an order, held, such woman may not be considered to be entitled to benefits as the widow of the worker.

The worker, R, died in 1960. R had been granted a divorce from M in 1940. M did not appear in the divorce proceeding. However, after R's death, M instituted an action in a court of the State, other than the court which granted the divorce, to have such divorce set aside on the ground that R was insane at the time of the divorce. After securing an order of that court purporting to set aside the divorce on that ground, M filed an application for benefits as R's window. The issue is whether she may be considered to have the status of his widow by reason of the order purporting to set aside the 1940 divorce.

The pertinent State statute in effect at the time of the divorce provided that "Except where the husband or wife is insane" a divorce could be granted for certain enumerated causes. However, under the law of the State a divorce improperly granted while one of the parties was insane nevertheless remains effective until set aside in an appropriate judicial proceeding. Further, under the law of the State the only court which would have jurisdiction to set aside such a divorce on the ground that it was improperly granted while a party thereto was insane would be the court which granted it. It is held that M may not be considered to be the widow of R under the present facts of the case, because the 1940 divorce of these parties has not been validly set aside by a court having jurisdiction to do so.

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