Washington Divorce Set Aside Based On Fraud By Decedent

NOVEMBER 30, 1998 VOLUME 6, NUMBER 22

Two weeks ago, Elder Law Issues reported on the case of Jessie Lee Anderson and Orange Pierson, a married couple who had separated forty years ago and both remarried (see Volume 6, Issue 20). Upon Ms. Anderson’s death, Mr. Pierson attempted to claim his rights as surviving spouse, but the California courts barred him from acting as if the marriage remained valid.

In a similar case, the Washington state courts have come to a different conclusion. Victor Himes and Frances Himes had been married in 1960, and lived together as recently as 1975. Mr. Himes was transferred by his employer (the U.S. Navy) to Oak Harbor, Washington in that year, and Mrs. Himes stayed at their home in Pennsylvania. Other than one three-month stay in Washington, she remained in Pennsylvania for the rest of their marriage.

In 1987, Mr. Himes filed a “do-it-yourself” divorce kit in Washington. He alleged that he did not know the whereabouts of his wife. The divorce was granted later that same year.

Within a few months, Mr. Himes had met Janana MacIntyre. They were married in 1993, and Mr. Himes died in 1994. After his death, Janana Himes (the second wife) began to receive survivor’s benefits from Mr. Himes’ Navy pension.

Frances Himes (the first wife) first learned of the 1987 divorce when, after her husband’s death, the Navy notified her that her dependent’s allowance and medical insurance coverage would be terminated. When she inquired further, she learned that a divorce had been granted, that her husband had remarried, and that he had died leaving his new wife as the beneficiary of his pension.

Frances Himes filed a motion to set aside the 1987 divorce on the basis that it had been fraudulently obtained. She alleged that Mr. Himes had known perfectly well where she lived, and that she had not moved from the family home for 21 years. She explained that she had not moved to set aside the divorce earlier for the simple reason that she had been unaware of its existence. If successful, she would regain her insurance coverage and begin receiving the survivor’s benefits being paid to Janana Himes.

Not surprisingly, Janana Himes objected to setting aside the divorce decree. She pointed out that the general rule of law requires that such a motion be filed within a short time of the final order, and that Frances Himes had not taken any such action for seven years. She also pointed out that Frances Himes had not lived with Mr. Himes for over twenty years, and had made no effort to find him or maintain any sort of marital relationship.

The Washington Supreme Court agreed with Frances Himes. Reversing a 90-year-old rule established by their own predecessors, the justices decided that a divorce decree could be set aside despite the fact that one party to the marriage had since died. Frances Himes’ marriage to Victor Himes was reestablished, and her survivor’s benefits restored. Marriage of Himes, October 29, 1998.

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