Hastie, Chief Judge, and Van Dusen and Adams, Circuit Judges.
Pauline and Orlando Legory were married in 1956 and thereafter had a daughter. In 1960 Mrs. Legory, having separated from her husband, instituted an action for divorce in New Jersey where the parties were domiciled. This action was uncontested and on March 10, 1961 a judgment nisi was entered. Three months later, final judgment was entered as of course, as was provided by New Jersey law. However, before the judgment thus became final Orlando had become ill and Mrs. Legory had returned to her former marital abode to care for him. The parties had become reconciled, cohabitation had been resumed, and they lived together as husband and wife until Orlando's death in November 1961.
Shortly after her husband's death Mrs. Legory filed an application for Social Security benefits on behalf of herself as widow of the wage earner, and on behalf of their infant daughter. These benefits were initially granted; however, after two payments Mrs. Legory's benefits as a widow were terminated when the Social Security Administration learned of the existing decree of divorce.*fn1 Mrs. Legory then applied for benefits as a divorced wife who had been receiving one half of her support from the deceased wage earner. 42 U.S.C. § 402(g) (1) (F). This application was finally denied on February 17, 1965.
In April 1965 Mrs. Legory petitioned the Superior Court of New Jersey to set aside the divorce decree. In addition to setting out the fact of her reconciliation with Orlando prior to the entry of the final judgment, Mrs. Legory explained that she had received no notice of the entry of a final decree and did not learn that the divorce had become final until after her husband's death. She had believed that a further hearing was necessary before the decree could become final. The New Jersey court granted her motion, ruling in part:
"ORDERED AND ADJUDGED that the final judgment of divorce entered herein on June 12, 1961, dissolving the marriage between Pauline Legory and Orlando Legory be and the same is hereby vacated and set aside, and it is further
"ORDERED AND ADJUDGED that the marriage between the parties be deemed to have continued without interruption until dissolved by the death of Orlando Legory on November 7, 1961, and it is further
"ORDERED AND ADJUDGED that the said Pauline Legory be and she is hereby declared to be the lawful widow of the said Orlando Legory."
Immediately following the entry of this order, Mrs. Legory reapplied for benefits as the widow of Orlando Legory.*fn2 Her application was granted, but benefits were awarded only from May 24, 1965, the date of the order invalidating the divorce, rather than as claimed from the date of her husband's death in 1961. Thus, the Social Security Administration ruled that Mrs. Legory did not have the status of widow for Social Security purposes until the date of the vacating order, but acquired such status at that time. This is an appeal from a decision of the district court affirming that ruling of the Social Security Administration.
The Social Security Act entitles Mrs. Legory to benefits for every month beginning with the first month in which she was a widow. 42 U.S.C. § 402(g); 20 C.F.R. §§ 404.335 and 404.336. Whether she had the status of widow for Social Security purposes prior to the court order invalidating her divorce must be determined in accordance with state law because the Social Security Act provides that:
"An applicant is the * * * widow * * * of a fully or currently 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 such * * * [insured individual] died." 42 U.S.C. § 416(h) (1) (A).*fn3 Orlando Legory died domiciled in New Jersey. The issue for determination is whether, on the present facts, the courts of that state would hold that the Legorys were validly married at the time of his death.
It is not necessary to decide whether the Social Security Administration could properly have judged Mrs. Legory a widow before she brought an action in the state courts to have the divorce set aside. Her present application for benefits was filed after the state order vacating the divorce. The inquiry of this court, therefore, is limited to the question whether the courts of New Jersey would respect the terms of that order and find that the marriage continued uninterrupted until dissolved by Orlando's death.*fn4
In denying Mrs. Legory any benefits prior to the date of the vacating order, the Social Security Administration reasoned that the final judgment of divorce, entered after the parties had resumed cohabitation, was not void but merely voidable, and thus must still be deemed effective from the date of its entry until it was set aside in a later proceeding. However, the cases cited in support of this position illustrate merely that in certain circumstances it may be inequitable to set aside a final judgment of divorce simply because the parties temporarily resumed cohabitation prior to the entry of that judgment.*fn5 No case is cited and our research has disclosed no case ...