TN 12 (12-17)

A. PR 18-003 Status of Claimant's Marriages for Widow's Benefits -Texas State Law

Date: October 11, 2017

1. Syllabus

The number holder (NH) died while domiciled in Texas; therefore, we look to Texas law to determine if the Claimant is the NH’s widow. Under the Texas law, the Claimant and the NH had a valid ceremonial marriage at the time of the NH’s death in July 2004. Although they had filed for divorce, the court dismissed their divorce action for want of prosecution in 1995. This meant the Claimant and NH were not legally divorced and as a result, her March 2004 ceremonial marriage to her current spouse was void. The Claimant’s marriage to the NH did not end until the NH’s death in July 2004. The Claimant and her current spouse have a valid Texas common law which produces the same legal consequences as a ceremonial marriage and the presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law.

Because the Claimant had a valid, subsequent common-law marriage to her current spouse since 2005, she was not unmarried at the time she applied for widow’s benefits in 2016. Therefore, the Claimant does not meet this requirement for entitlement to widow’s benefits on the NH’s account.

2. Opinion

QUESTION PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of R~ (R~) to widow’s insurance benefits as the widow of J~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining whether R~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines, you asked whether under Texas law, R~ and the NH were validly married at the time of the NH’s death. See 42 U.S.C. § 416(c), (h)(1)(A)(i). For widow’s benefits on the NH’s record, R~ must also be unmarried and thus, you also asked us to determine the status of R~’s subsequent marriage to her second alleged spouse, M~ (M~). See 42 U.S.C. § 416(e)(1)(A). Specifically, you asked whether under Texas law R~ and M~ had a valid common-law marriage and if so, the effective date of when such marriage began.

ANSWER

Based on the evidence submitted, we believe that there is legal support for the agency to find that under Texas law R~ and the NH had a valid ceremonial marriage at the time of the NH’s death in July 2004. Although they had filed for divorce, the court dismissed their divorce action for want of prosecution in 1995. Therefore, R~’s marriage to the NH did not end until the NH’s death on July XX, 2004.

Although R~’s subsequent March XX, 2004 ceremonial marriage to M~ in Nevada was void because R~ was still married to the NH at that time, we believe that there is legal support for the agency to find that after the NH’s death and upon moving to Texas in 2005, R~ and M~ entered into a valid common-law marriage under Texas law effective sometime in 2005 when they began living as husband and wife in Texas. Because R~ and M~ have a valid common-law marriage, R~ was not unmarried at the time she applied for widow’s benefits on the NH’s record in 2016.

BACKGROUND

The evidence provided shows that R~ has had three purported marriages, as described below:

A. R~’s 1985 Ceremonial Marriage to the NH in Texas

R~ provided a copy of a completed and recorded Texas marriage license and certificate, which stated that she and the NH married in a ceremony on June XX, 1985 in E~ County, Texas. In 1995, the NH filed for divorce from R~. The evidence contains a copy of a Dismissal Order for Lack of Prosecution signed October XX, 1995 (and filed November XX, 1995), from the 34th District Court of E~ County, Texas showing that the divorce petition between R~ and the NH was dismissed after neither the parties nor their attorneys appeared for trial. The District Clerk for E~ County wrote a letter dated September XX, 2016, certifying that she searched the civil index records for the dates from 1985 to 2004 and found that the divorce case between the NH and R~ was closed with an Order for Dismissal for Want of Prosecution on November XX, 1995. R~ stated she believed she was divorced from the NH because he gave her divorce papers to sign and did not learn that the court dismissed the divorce petition until she tried to obtain proof of the divorce when she was buying a house in 2013. On July XX, 2004, the NH died domiciled in Texas.

B. R~’s Purported Ceremonial Marriage to M~ in Nevada

On March XX, 2004, R~ entered into a ceremonial marriage with M~ in Nevada under the belief that she and the NH were divorced. She provided a copy of a Nevada certified abstract of marriage record showing that she and M~ married in a solemnized marriage ceremony in C~ County, Nevada on March XX, 2004. They apparently lived in Arizona at this time from March 2004 until August 2004, but married in a ceremony in Nevada. R~ and M~ moved to L~, California in 2004, and later moved to E~, Texas in 2005, where they continue to live.

C. R~’s Subsequent Purported Common-Law Marriage to M~ in Texas

R~ submitted a SSA-754 Statement of Marital Relationship, which she competed in February 2017, stating that she and M~ began living together as husband and wife in March 2004. She stated that they lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. In addition, R~ stated that from March 2004 to August 2004, she and M~ lived together as husband and wife in M~ Arizona, and that from August 2004 to sometime in 2005, R~ and M~ lived as husband and wife in L~, California. Beginning at some point later in 2005, R~ and M~ began living as husband and wife in E~, Texas, where they continue to reside together in 2017. She listed her address as E~, Texas. She reported that they opened joint bank accounts showing themselves as married, they had insurance policies showing that they were married, and they filed tax returns as a married couple.

M~ also submitted a SSA-754, which he completed in February 2017, stating and he and R~ lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. He stated that they began living together as husband and wife in March 2004 in Arizona, then they lived together in California from 2004 to 2005, and then they lived together in E~, Texas from 2005 until 2017. He also stated that they filed tax returns as a married couple, opened joint bank accounts as a married couple, and have life insurance policies showing they are married. He listed the same home address as R~ in E~, Texas.

ANALYSIS

A. Federal Law: Entitlement to Widow’s Insurance Benefits Under the Act

A claimant is entitled to widow’s insurance benefits under Title II of the Act if, among other things, she shows that she is the widow of a person who died a fully insured individual, that their marriage lasted nine months immediately before the insured died, and that she is unmarried. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (you are married and your marriage lasted for at least 9 months), (e) (you are unmarried), 404.345 (your relationship as a surviving spouse under state law) Thus, R~ must show that she is the NH’s widow, that they were married for at least 9 months immediately before the NH died in July 2004, and that she is unmarried.

The agency will determine whether an applicant is an insured individual’s widow by determining if the courts of the state in which the insured individual had a permanent home at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Because the NH was domiciled in Texas at the time he died, we look to Texas law to determine whether R~ is the NH’s widow.

B. Texas State Law: R~’s Marriages to the NH and to M~

1. R~ Was Validly Married to the NH at the Time of His Death in July 2004

In Texas, marriages may be either ceremonial or informal. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). Here, there is evidence of R~’s ceremonial marriage to the NH in Texas in 1985, her ceremonial marriage to M~ in Nevada in March 2004, and a common-law marriage to M~ in Texas in 2005. When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 (Tex. 1981); In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.).

Here, R~s March 2004 ceremonial marriage to M~ is her most recent marriage and therefore, is presumed valid. See Tex. Fam. Code Ann. § 1.103 (Texas law applies to persons married elsewhere who are domiciled in this state). However, as presented above, the evidence indicates that R may still have been married to the NH at the time she married M~ in March 2004. Under Texas law, a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.) (“This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.”); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). Therefore, we consider whether R~ and the NH were validly married and remained married at the time she later entered into this ceremonial marriage with M~ in March 2004, such that her ceremonial marriage to M~ was void.

Here, the evidence indicates that R~ and the NH entered into a ceremonial marriage in Texas. A ceremonial marriage requires parties to the marriage to obtain a marriage license from a county clerk, participate in a marriage ceremony an authorized person performed, and return the marriage license after the ceremony to the county clerk, who then records the completed marriage license and mails the certified copy to the married couple. See Tex. Fam. Code Ann. §§ 2.202, 2.203(a), 2.206(a), 2.208(a). The recorded marriage license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d 877, 881 (Tex. Civ. App. - Texarkana 1965, writ ref’d n.r.e.); Jones v. State, 17 S.W.2d 1053, 1056 (Tex. Crim. App. 1928); see also Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. Civ. App. – Dallas 1964, writ ref’d n.r.e) (“It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality.”).

As described above in the background section, the evidence provided shows R~ and the NH had a valid ceremonial marriage in Texas that began in 1985 and continued until the time of the NH’s death in July 2004. R~ and the NH’s 1985 recorded Texas marriage license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d at 881; see also Simpson v. Simpson, 380 S.W.2d at 858 (“It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality.”). Once a marriage exists, it may be terminated only by death, a court decree of divorce, or annulment. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981); Tatum v. Tatum, 476 S.W.2d 629, 631 (Tex. Civ. App. – Fort Worth, 1972, writ dsm’d w.o.j.). The information you provided shows that R~ believed she later divorced the NH because the NH gave her divorce papers that she signed. However, the evidence also shows that the court dismissed the NH’s divorce petition for want of prosecution and therefore, did not render a final judgment of divorce. Because there was no timely challenge to this dismissal of the divorce action, the order of dismissal became final. See Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex. App. – Dallas 2010, no pet.) (the court properly dismissed the divorce action after the spouse had died and with no timely challenge to the dismissal, the order of dismissal became final). R~ stated that she did not learn that the divorce petition was dismissed until she bought a house in 2013 and after she married M~ in March 2004 in a ceremonial marriage. Under Texas law, evidence that divorce proceedings were instituted during a first marriage, but then dismissed for want of prosecution has been held “sufficient to overcome the presumption of validity of the subsequent marriage.” Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. Dallas 2003, pet. denied); see Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App. —Houston [1st Dist.] 2000, no pet.), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003). Thus, the evidence provided is sufficient to establish that R~ and the NH were validly married and never divorced, and as a result, her March 2004 ceremonial marriage to M~ was void.

Therefore, under Texas law, R~ was validly married to the NH at the time of his death in July 2004 and their marriage lasted at least nine months before the NH’s death. As such, R~ is the NH’s widow under the Act for purposes of her application for widow’s benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345. However, as explained below, R~ does not meet the requirement for widow’s benefits that she was unmarried because there is legal support for the agency to reasonably conclude that she is currently in a valid common-law marriage to M~ under Texas law.

2. R~ Has a Valid Common-Law Marriage to M~

The information provided shows that while R~ and M~s 2004 ceremonial marriage was void, she entered into a subsequent common-law marriage to M~. Under Texas law, an otherwise void marriage becomes valid if, after the prior marriage has been dissolved, the parties live together as husband and wife and represent themselves to others as being married. Tex. Fam. Code Ann. § 6.202(b). Here, R~’s marriage to the NH terminated upon his death in July 2004, and she continued to live with M~ after this time as a married couple. To establish a valid marriage to M~ under Texas law, R~ must prove that she and M~ lived together as husband and wife and represented themselves to others as being married during the time following the NH’s death in July 2004 (and dissolution of his marriage to R~). Id. at § 6.202(b); see also Omodele v. Adams, 2003 WL 133602, at *3-4 (Tex. App – Houston [114th Dist.] 2003, no pet.) (“when a woman continues to live with a man as his wife after his divorce from a previous wife, a common-law marriage exists that may be the subject of a divorce”). In other words, they can establish a valid common-law marriage under Texas law upon dissolution of R~s marriage to the NH with his death in July 2004.

a. Overview of the Elements of a Common-Law Marriage

The elements of a valid common-law marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).

b. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence. See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”). Therefore, we must determine if R~ has shown by a preponderance of the evidence that during the time she and M~ lived together in Texas beginning in 2005 (and after the NH’s death), she and M~ agreed to be married, lived together in Texas as husband and wife, and represented to others that they were married.

R~ and M~ provided their statements regarding their common-law marriage. Although R~ did not submit any documentary evidence, under Texas law, statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married). Indeed, a claimant’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele, 2003 WL 133602, at *2 (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony established that the parties lived together for almost 2 years and that they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (the wife’s uncontroverted testimony that they represented themselves as married to others supported the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (the wife’s testimony was direct evidence of their agreement to be married).

In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We consider whether the greater weight and degree of credible evidence supports a common-law marriage between R~ and M~.

c. Application of the Elements of a Common-Law Marriage

i. Elements

a. Agreement to Marry

The first element for a valid common-law marriage requires an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied).

Here, R~ and M~ clearly had an agreement to marry as they were married in a ceremonial marriage in Nevada in March 2004 and did not know that such ceremonial marriage was void until 2013. They each submitted a Statement of Marital Relationship in which they both stated that they began living together in a husband and wife relationship in March 2004 after this ceremonial marriage and continued to live together and represent to others that they were married after they moved to Texas in 2005. As such, we believe that Texas courts would find an agreement to marry and that the agency could reasonably conclude that R~ and M~ have established the first element for a valid common-law marriage under Texas law.

Furthermore, section 6.202 indicates that the critical elements for proving a valid common-law marriage upon dissolution of a prior marriage under circumstances such as the one involved here are the elements of cohabitation and representation of marriage to others, which we address next. See Tex. Fam. Code Ann. § 6.202(b) (“The later marriage that is void under this section becomes valid when the prior marriage is dissolved, if, after the date of the dissolution, the parties have lived together as [spouses] and represented themselves to others as being married.”).

b. Cohabitation in Texas as Spouses

The second element for a valid common-law marriage requires that the couple live together in Texas as spouses. See Tex. Fam. Code Ann. § 2.401(a)(2). R~ and M~ both stated that they have lived together as spouses in Texas from 2005 to the present. They continue today to live at the same address in E~, Texas. R~ and M~ stated that they did not live together continuously during that time, and that they had a period of separation from September 2015 to November 2015. However, courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. –Houston [14th Dist.] 2011 pet. denied). (‘[c]ohabitation need not be continuous for a couple to enter into a common law marriage.”). Considering their statements, we believe that there would be legal support for the agency to conclude that the greater weight and degree of credible evidence supports a reasonable belief that R~ and the NH lived together in Texas as spouses since 2005 or for the past 12 years. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation element where no one disputed that they couple began living together in 1999 and continued to live together until 2011 when they separated); Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting). As such, we believe that Texas courts would find cohabitation as spouses in Texas and that the agency could reasonably conclude that R~ and M~ have established the second element for a valid common-law marriage under Texas law.

c. Representation to Others as Married

The third element for a valid common-law marriage requires that the couple held out to the public, or represented to others while living in Texas, that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or holding out to the public as being married, can be shown through the “conduct and actions of the parties.” Eris, 39 S.W.3d at 715. Spoken words are not necessary to prove this element; rather, the focus is upon whether the couple had a reputation for being married. Id. Occasional introductions as husband and wife are not enough to satisfy the holding out requirement, and there is no such thing as a secret common-law marriage. Threet, 333 S.W.2d at 364; Winfield, 821 S.W.2d at 648-51. Instead, Texas law requires that the couple “consistently [conduct] themselves as husband and wife in the public eye or that the community [view] them as married.” Van Hooff, 2016 WL 193172, at *5. “[T]he jurisprudence in Texas strictly construes the holding out element and has held that marriage is more than a contract; it is a ‘status’ in the community, a general reputation, a public and open holding out that the parties are man and wife.” Id. at *6.

Here, the evidence shows that R~ changed her name to M~’s last name after she and M~ married. R~ and M~ also both stated that they had designated themselves as spouses and married in joint tax returns, a joint bank account for at least ten years, and a life insurance policy since 2015. R~ and M~ also stated that they introduced each other as husband and wife, and that their relatives and friends knew of their relationship. This evidence is sufficient to establish their status in the community as a married couple. See In re Estate of Giessel, 734 S.W.2d 27, 30-31 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) (the couple had lived together as husband and wife for 20 years, the husband represented to many people in the community that the woman was his wife, and the couple had a reputation in the community for being married); Tatum, 476 S.W.2d at 630 (filing joint tax returns, opening a joint checking account, designating a spouse on life insurance policy, and holding themselves out to their community as being married all constituted sufficient evidence of a common-law marriage). We believe that Texas courts would find that they represented to others that they were married in Texas and that the agency could reasonably conclude that R~ and M~ have established the third element for a valid common-law marriage under Texas law.

ii. The Totality of the Evidence

In sum, we believe a court would find under Texas law that R~ and M~ proved a subsequent valid common-law marriage. Thus, we believe there is legal support for the agency to conclude that the greater weight and degree of credible evidence in their statements establishes that R~ and M~ had a common-law marriage that began after the dissolution of R~’s marriage to the NH at the time of the NH’s death in July 2004 and upon continuing their relationship in Texas in 2005. Although they also stated later in their 2017 statements to the agency that they believed they were not legally married once they learned in 2013 that R~ had not been divorced from the NH at the time of their March 2004 ceremonial marriage, this subsequent belief based on a misunderstanding of the law does not disprove or invalidate an otherwise valid common-law marriage under Texas law. In re Estate of Giessel, 734 S.W.2d at 31 (the wife’s representations in documents that she was single went “to the weight of the evidence” and did not “negate a marriage, as a matter of law”). They were living as a married couple in Texas and under the belief that they were married for eight years from 2005 until 2013. And they continued to live together after that time and currently live together in 2017. There is no such thing as a common-law divorce. Estate of Claveria, 615 S.W.2d at 167.

Here, since R~ had a subsequent valid common-law marriage to M~, she was not unmarried at the time she applied for widow’s benefits. As such, R~ does not meet this requirement for entitlement to widow’s benefits on the NH’s account. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. § 404.335(e) (requirement that a claimant under age 60 applying for widow’s benefits must be unmarried).

3. R~’s Common-Law Marriage to M~ Began in 2005

Because we believe that R~ has proven a subsequent valid common-law marriage to M~, we now address the effective date of their common-law marriage. A common-law marriage exists when the three elements (an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship) are present. See Farrell v. Farrell, 459 S.W.3d at 117. In addition, all elements must exist at the same time. See Bolash v. Heid, 733 S.W.2d. 698, 699 (Tex. App-San Antonio 1987, no writ). In this case, R~ and the NH’s marriage was dissolved at the time of the NH’s death in July 2004. However, the information provided shows that R~ and M~ were living in Arizona and California in 2004 and 2005 and did not live together as husband and wife in Texas until they moved to E~, Texas sometime later in 2005. The three elements necessary for a valid informal marriage did not exist until sometime in 2005 when R~ and M~ began living in Texas. See Williams v. Home Indem. Co,, 722 S.W.2d 786, 788 (Tex. App. – Houston [14th Dist.] 1987, no writ) (living together and holding out in another state does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann. § 2.401(a)(2) (“they lived together in this state as husband and wife and there represented to others that they were married”) (emphasis added). Therefore, the effective date of R~ and M~’s informal marriage would be sometime in 2005 when they began living as husband and wife in Texas.

CONCLUSION

We conclude that under Texas law, R~ and the NH had a valid ceremonial marriage until the time of the NH’s death in July 2004. R~’s March 2004 ceremonial marriage to M~ was void because R~ was still married to the NH at that time. However, after the NH’s death and upon moving to Texas in 2005, R~ and M~ subsequently validated their marriage because they agreed to be married, lived as husband and wife in Texas, and represented to others that they were married. Because R~ had a valid, subsequent common-law marriage to M~ that began in 2005 when they moved to Texas, R~ was not unmarried at the time she applied for widow’s benefits in 2016. Therefore, R~ does not meet this requirement for entitlement to widow’s benefits on the NH’s account.

B. PR 17-038 Texas State Law – Status of Claimant’s Marriages for Widow’s Application

Date: February 2, 2017

1. Syllabus

The NH was domiciled in Texas at the time of his death. In order to determine whether the Claimant is entitled to benefits as the NH’s widow, we next analyze whether her marriage to the NH terminated before her subsequent marriage to her second spouse. The claimant and the NH had a valid Texas common-law marriage beginning in 1981. Texas recognizes common-law marriages. When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Based on the evidence submitted, although Texas law presumes the validity of the Claimant’s last marriage to the second spouse, evidence that the Claimant and the NH never divorced rebuts this presumption. As a result, the marriage between the Claimant and the second spouse was void under Texas law and the Claimant’s marriage to the NH remained valid at the time of his death. Since the Claimant and the NH never legally divorced, the Claimant remains the NH’s widow under Texas law and for purposes of determining her entitlement to widow’s benefits under the Act.

2. Opinion

QUESTION PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of K~ (K~) to widow’s insurance benefits as the widow of B~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining whether K~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines, you asked whether under Texas law, K~ and the NH were validly married at the time of the NH’s death. See 42 U.S.C. § 416(c), (h)(1)(A)(i). In making this determination, you asked whether Texas law would apply a presumption of validity of the last marriage to establish that K~ is not the NH’s legal widow and whether there is sufficient evidence to rebut that presumption. You also asked us to determine the status of K~’s marriage to her second alleged spouse, J~ (J~).

ANSWER

Based on the evidence submitted, although Texas law presumes the validity of K~’s last marriage to J~, evidence that K~ and the NH never divorced rebuts this presumption. As a result, the marriage between K~ and J~ was void under Texas law and her marriage to the NH remained valid at the time of his death. Since K~ and the NH never legally divorced, she remains the NH’s widow under Texas law and for purposes of determining her entitlement to widow’s benefits under the Act.

BACKGROUND

The NH passed away on March XX, 2008, while domiciled in Texas. Following the NH’s death on March XX, 2008, K~ learned that she and the NH were never legally divorced. On April XX, 2016 , K~ filed an application for benefits on the NH’s record as his widow, and it is this claim that is the subject of this present legal opinion. In order to determine whether K~ is entitled to benefits as the NH’s widow, we next analyze whether her marriage to the NH terminated before her subsequent marriage to J~.

K~’s First Purported Common-Law Marriage to the NH and Lack of Divorce

K~ provided a Texas Declaration and Registration of Informal Marriage signed August XX, 1983 as proof that she and the NH entered into a common-law marriage on January XX, 1981 in B~, Jefferson County, Texas. The evidence contains a certified copy of a Final Decree of Divorce showing that the NH had a previous marriage that ended in March 1980 before his marriage to K~ began in 1981. K~ also submitted a SSA-754 Statement of Marital Relationship stating that beginning in 1981, she and the NH lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. K~ indicated that at some point, she lived with another person as husband and wife, but she did not provide dates or any other details concerning the relationship. Between 1976 and 1991, K~ and the NH had four children.

In 1994, K~ filed for divorce. She stated that all the divorce documents were signed and filed with an attorney. To the best of her knowledge, she received a copy of the final divorce decree, but the documents were either lost or destroyed. However, when she attempted to find proof of the divorce, she learned that their divorce action had been dismissed. The evidence contains a certified copy of a September 1995 Dismissal for Lack of Prosecution from the 279th District Court of Jefferson County, Texas showing that the divorce action between K~ and the NH was dismissed after neither party nor their attorneys appeared for trial. In November 2016, the agency contacted the Jefferson County, Texas district clerk’s office and found no record of a divorce between K~ and the NH from 1981-1998.

According to your request, the NH’s prior disability application alleged that his marriage to K~ ended on March XX, 1994. However, K~ is listed as the NH’s surviving spouse on his 2008 Texas Certificate of Death.

K~’s Second Purported Ceremonial Marriage to J~

On June XX, 1994, K~ entered into a ceremonial marriage with J~ under the belief that she and the NH were divorced. She provided a copy of a Texas marriage license showing that she and J~ married in a solemnized marriage ceremony in Beaumont, Jefferson County, Texas on June XX, 1994. K~ and J~ had one child, who was born on February XX, 1997. They divorced on March XX, 2004. K~ provided the agency with a certified copy of their Final Decree of Divorce.

ANALYSIS

A. Entitlement to Widow’s Insurance Benefits Under the Act

A claimant is entitled to widow’s insurance benefits under Title II of the Act if, among other things, she shows that she is the widow of a person who died a fully insured individual and that her marital relationship to the insured individual lasted for at least 9 months immediately before the insured died. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (relationship must have lasted for at least 9 months), 404.345 (your relationship as a surviving spouse under state law), 404.704 (your responsibility for giving evidence), 404.709 (preferred evidence), 404.723 (when evidence of marriage is required), 404.726 (preferred evidence of common-law marriage). Thus, K~ must establish the requisite marital relationship with the NH by showing that she is the NH’s surviving spouse, or widow, and that they were married for at least 9 months immediately before the NH died in March 2008. See 42 U.S.C. § 416(c)(1); 20 C.F.R. §§ 404.335(a), 404.344-404.346.

The agency will determine whether an applicant is an insured individual’s surviving spouse, or widow, by determining if the courts of the state in which the insured individual had a permanent home at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Because the NH was domiciled in Texas at the time he died, we look to Texas law to determine whether the NH and K~ were validly married, and if not, whether she would be able to inherit a spouse’s share of the NH’s property under Texas intestate succession laws.

B. Under Texas Law, K~ has Proven that She had a Valid Marriage to the NH at the Time of the NH’s Death in 2008, under 42 U.S.C. § 416(h)(1)(A)(i)

1. Texas State Law on Common-Law Marriage and Marriage Presumptions

The basis for K~’s claim is that she and the NH had a valid Texas common-law marriage beginning in 1981. Texas recognizes common-law marriages. See Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”); Tex. Fam. Code Ann. § 2.401(a) (statutory recognition of common-law marriage and proof required to show such marriage). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App.--Houston 1964, writ ref’d n.r.e).

A man and woman may prove a valid common-law marriage by showing (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. § 2.401(a)(2); see also Russell, 865 S.W.2d at 931-33. The party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence, which is defined as “the greater weight and degree of credible evidence.” See Tompkins v. StatE, 774 S.W.2d 195, 207 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). The elements of common-law marriage—an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship to others—are determined on a case-by-case basis. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). Section 2.402 of the Texas Family Code provides that the parties to a common-law marriage may execute a Declaration of Informal Marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk. Tex. Fam. Code Ann. § 2.402. This declaration affirms the elements, described above, of a common-law marriage. Id. A Declaration of Informal Marriage recorded by the county clerk is prima facie evidence of the marriage of the parties. Tex. Fam. Code Ann. § 2.404(d).

Here, two purported marriages are at issue -- K~’s 1981 common-law marriage to the NH and her 1994 ceremonial marriage with J~. Under Texas law, a marriage is void if entered into when either party has an existing, undissolved marriage. See Tex. Fam. Code Ann. § 6.202(a); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). “This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.” Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.). When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.); Estate of Claveria, 615 S.W.2d at 165.

Because K~’s 1994 ceremonial marriage to J~, evidenced by a recorded Texas marriage license, is more recent than her 1981 common-law marriage to the NH, her marriage to J~ is presumed valid under Texas law. K~ bears the burden of proving that she was married to the NH at the time she married J~ and that her marriage to the NH was not dissolved. As explained below, it is our opinion that a Texas court would find that K~ has met her burden of both establishing her prior common-law marriage to the NH and its continuing validity at the time of her later ceremonial marriage to J~, rendering her marriage to J~ void.

2. K~ Has Provided Sufficient Evidence to Prove a Valid Common-Law Marriage to the NH Beginning in 1981

When an applicant applies for spousal benefits, the agency requires evidence of a marriage. See 20 C.F.R. §§ 404.723, 404.726; see also Program Operations Manual System (POMS) GN 00305.065 (development of common-law marriages). Here, K~ provided a Texas Declaration and Registration of Informal Marriage signed August 12, 1983 as proof that she and the NH entered into a common-law marriage on January XX, 1981 in B~, Jefferson County, Texas.

As noted above, under Texas law, Declarations of Informal Marriage recorded by the county clerk constitute prima facie evidence of the marriage of the parties. Tex. Fam. Code Ann. § 2.404(d). The Declaration K~ submitted appears valid, as all of the conditions of sections 2.402 and 2.404 of the Texas Family Code are met. See Tex. Fam. Code Ann. §§ 2.402 (requirements for what the Declaration of Informal Marriage must contain), 2.404 (requirements for recording of Certificate or Declaration of Informal Marriage). Thus, the Declaration provides sufficient evidence that K~ and the NH entered into a valid common-law marriage in 1981. See POMS GN 00305.075 (once a signed and certified Texas Declaration and Registration of Informal Marriage is submitted, further development of the common-law relationship is unnecessary unless other facts indicate that the declaration may not be valid). We have no evidence contradicting the validity of the common-law marriage as the Declaration presents. See Colburn v. State, 966 S.W.2d 511, 514-515 (Tex. Crim. App. 1998) (as a “properly recorded declaration of informal marriage constitutes prima facia proof of the informal marriage . . . the trial court may find the common law marriage proven based upon the declaration alone, but evidence may be offered rebutting the existence of the marriage as sworn to or stated in the declaration.”). Given this unchallenged prima facie evidence of a valid common-law marriage, the more critical issue under these facts in addressing the presumption of the validity of K~’s most recent marriage to J~ is whether K~’s marriage to the NH terminated before her subsequent ceremonial marriage to J~.

3. K~ Has Demonstrated that Her Marriage to the NH Did Not Terminate Before Her Subsequent 1994 Marriage to J~

We find no evidence that K~ and the NH’s 1981 marriage terminated before her 1994 marriage to J~. Though the law recognizes common-law marriage, Texas law does not recognize common-law divorce. Estate of Claveria, 615 S.W.2d at 167. A subsequent ceremonial marriage does not set aside, dissolve, or annul the prior common-law marriage. Aldana v. Aldana, 42 S.W.2d 661, 665 (Tex. Civ. App. 1931), writ dismissed w.o.j. (Feb. 24, 1932). Rather, a common-law marriage, like any other marriage, only terminates at the death of one of the spouses or a court order dissolving the marriage. Estate of Claveria, 615 S.W.2d at 167. As to a dissolution of marriage, a Texas court renders a judgment of divorce when a court makes an official announcement, either in writing or orally in open court, of its decision on the matter. See In re Marriage of Joyner, 196 S.W.3d 883, 886 (Tex. App.—Texarkana 2006, pet. denied); Bailey-Mason v. Mason, 122 S.W.3d 894, 897 (Tex. App. —Dallas 2003, pet. denied). Thus, we consider whether there is evidence that K~’s marriage to the NH dissolved by divorce.

Although K~ filed for divorce from the NH in 1994, there is no evidence showing that it resulted in a final court judgment dissolving the marriage. Rather, the divorce action between K~ and the NH was dismissed for lack of prosecution in September 1995 after neither party appeared for trial. See Tex. R. Civ. P. 165a(1) (“A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.”). As noted, the evidence contains a certified copy of a September 1995 Dismissal for Lack of Prosecution from the 279th District Court of Jefferson County, Texas showing that the divorce action between K~ and the NH was dismissed for want of prosecution. There is no indication that either party filed a Motion to Reinstate within the time limits prescribed by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 165a(3) (Motions to Reinstate cases dismissed for want of prosecution must be filed within 30 days after the order of dismissal is signed). Under Texas law, evidence that divorce proceedings were instituted during a first marriage, but then dismissed for want of prosecution has been held “sufficient to overcome the presumption of validity of the subsequent marriage.” Bailey-Mason, 122 S.W.3d at 898; see Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App. —Houston [1st Dist.] 2000, no pet.), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003).

Additionally, the agency has been unable to locate any divorce records as to K~’s marriage to the NH. We have no information indicating that K~ or the NH resided anywhere other than Jefferson County, Texas. The agency conducted a search of divorce records in Jefferson County and found no record of divorce between 1981 and 1998. Evidence of the absence of official divorce or annulment records will rebut the presumption that the prior marriage was dissolved and that the most recent marriage is valid. See Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975) (in order to rebut the presumption of validity of the most recent marriage, it is not necessary to prove the nonexistence of divorce in every jurisdiction where proceedings could have been possible; it is only necessary to rule out those proceedings where the parties might have been expected to pursue them). We also note that although the NH alleged his marriage to K~ ended in 1994 in a previous disability application, K~ is listed as his surviving spouse on his 2008 Texas Certificate of Death. Thus, for purposes of rebutting the validity of K~’s subsequent marriage to J~, the evidence provided is sufficient to establish that K~ and the NH never divorced.

Based on the foregoing evidence, we conclude a Texas court would find that the common-law marriage between K~ and the NH did not end until the NH’s death in March 2008. See Estate of Claveria, 615 S.W.2d at 167. As a result, K~’s subsequent 1994 ceremonial marriage to J~ was void. See Tex. Fam. Code Ann. § 6.202(a). Under Texas law, K~ and the NH had a valid common-law marriage that began in 1981 and continued until the time of the NH’s death in 2008. Therefore, K~ is the NH’s legal widow for purposes of her application for widow’s benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345.

CONCLUSION

We conclude that K~ has successfully rebutted the presumption under Texas law that her later ceremonial marriage to J~ was valid by proving a valid common-law marriage to the NH that was never dissolved by divorce. As such, K~’s marriage to J~ was void and she was validly married to the NH at the time of his death in 2008. K~ is the NH’s legal widow under Texas law for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

Traci B. Davis

Acting Regional Chief Counsel

By: Tracey Wirmani

Assistant Regional Counsel

C. PR 09-106 Texas State Law When More Than One Person Claims To Be Surviving Spouse (Number Holder (NH), M~)

Date: May 13, 2009

1. Syllabus

The agency received competing claims for surviving spouse's benefits. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. A spouse's acknowledgment of the marriage and the births of children are factors to consider in determining whether the presumption applies. The fact that the number holder (NH) never divorced his first wife rebuts the presumption of the validity of the later marriage to the claimant. Under Texas law the marriage is considered void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. The claimant reported that she was unaware that the NH was previously married. The claimant's status as a putative spouse would not permit her to inherit the NH's intestate property. Thus, she cannot qualify for surviving spouse's benefits.

2. Opinion

This memorandum is in response to your request for an opinion regarding whether Jenny L. D~ (Ms. D~) can receive surviving spouse's benefits on the Social Security record of M~, Jr. (Mr. M~). Specifically, you have asked whether the Texas presumption of the validity of the last marriage applies when Ms. D~ was the second of at least four spouses of Mr. M~ and there is no evidence of a divorce between Mr. M~ and his first alleged spouse, Minnie M~ M~ (Ms. M~). If Ms. D~ is not entitled to surviving spouse's benefits, you have asked whether she can receive surviving divorced spouse's benefits on Mr. M~'s record. In our opinion, evidence that Ms. M~ and Mr. M~ never divorced rebuts the presumption of the validity of the later marriage between Ms. D~ and Mr. M~. As a result, the marriage between Ms. D~ and Mr. M~ was void under Texas state law. Since Ms. D~ and Mr. M~ were never validly married, she is similarly ineligible for surviving divorced spouse's benefits.

As we understand the facts, Mr. M~ was entitled to Disability Insurance Benefits from May 1993 until his death, which occurred in Texas on December XX 1993. There are competing claims for surviving spouse benefits on Mr. M~'s Social Security record. The evidence you provided shows that Mr. M~ had at least four marriages.

On November XX, 1965, Mr. M~ married Ms. M~. Ms. M~ reported that she and Mr. M~ separated in 1970 or 1971. She stated that to her knowledge there was never a divorce. The Social Security Administration (agency) searches of divorce records indicated that divorce proceedings were initiated on two occasions in Galveston, Texas, but a divorce was never finalized.

On March XX, 1970, Mr. M~ married Ms. D~. According to Ms. D~, she and Mr. M~ separated in 1971. She reported that she never divorced Mr. M~ and that Mr. M~ never notified her that he divorced her. Agency searches of divorce records produced no evidence of a divorce between Mr. M~ and Ms. D~.

On December XX, 1974, Mr. M~ married Annie D. H~ (Ms. H~). A child, L~ (L~), was born during the marriage. The agency indicates that it received evidence that Mr. M~ and Ms. H~ divorced in June 1979 in Many, Louisiana.

On May XX, 1985, Mr. M~ married T~ (Ms. T~). The marriage ended with Ms. T~'s death on July XX, 1993.

The file contains the following documented evidence:

1) Mr. M~'s January 28, 1993, Disability Application: At the time of the application, Mr. M~ was living in Texas City, Texas. Mr. M~ stated that he was currently married to Ms. T~. He reported that he had married Ms. T~ on May XX, 1985, in Port Arthur, Texas. Mr. M~ also reported one prior marriage to Virginia (Surname Unknown). He stated that the marriage took place in Port Arthur, Texas in 1969, and that the marriage ended by divorce on an unknown date in Orange, Texas.

2) Mr. M~'s Numident: Mr. M~ was born in Pleasant Hill, Louisiana.

3) Ms. H~'s March 25, 1994, Application for Surviving Child Benefits for L~: Ms. H~ stated that she and Mr. M~ married in June 1974 in Center, Texas, and divorced about June 1979 in Many, Louisiana. During the marriage, L~ was born on October XX, 1975, in Seattle, Washington. The agency reviewed divorce papers listing L~ as a child of Mr. M~ and Ms. H~.

4) Ms. M~'s January 30, 2002, Application for Widow's Benefits: At the time of her application, Ms. M~ was living in Bossier City, Louisiana. Ms. M~ stated that she and Mr. M~ married on November XX, 1965, in Orange City, Texas. She reported that Mr. M~ had one prior marriage that ended in divorce, but she did not have any further information about the prior marriage. Ms. M~ stated that she and Mr. M~ lived together for eight or nine years before separating. She indicated that she never filed for divorce and never received any notice that Mr. M~ had filed for a divorce.

5) Ms. D~'s August 8, 2005, Disability Application: At the time of her application, Ms. D~ was living in Franklin, Louisiana. Ms. D~ stated that she married Mr. M~ in January 1970 in Orange, Texas. She stated they had separated for 20 years, but had not divorced. She did not know his social security number or have enough information to permit the agency to locate Mr. M~'s record at that time.

6) Ms. D~'s April 2, 2007, Disability Application: Ms. D~'s address had not changed. She stated that she had Mr. M~ had married in January 1964 in E~, Texas, and had not divorced. Ms. D~ supplied no proof of the marriage.

7) Ms. D~'s July 18, 2007, Retirement Application: Ms. D~'s address had not changed. She stated that she and Mr. M~ married in May 1970. Ms. D~ had no proof of marriage. She reported that Mr. M~ had shot her 25 years before, and she had not seen him since. She stated that to the best of her knowledge she and Mr. M~ were still legally married.

8) Ms. D~'s and Mr. M~'s Marriage Certificate: On March XX, 1970, Mr. M~ and Ms. D~ were married before a Justice of the Peace in Orange, Texas.

9) Ms. D~'s Remarks: Ms. D~ stated that she met Mr. M~ in Orange, Texas, around 1968, and he did not state that he had ever been married. She stated that Mr. M~ shot her in Franklin, Louisiana, where they were visiting. Ms. D~ reported that afterward she moved to New Orleans, Louisiana, to get away from him. Ms. D~ stated that Mr. M~ was caught and brought back to Franklin, Louisiana, for trial. She stated she did not know what happened at trial. Ms. D~ reported that she did not divorce him, and Mr. M~ never notified her that he divorced her. The agency noted that Mr. M~ died domiciled in Texas City, Texas.

10) Report of Contact with Ms. M~: Ms. M~ stated that she married Mr. M~ in Orange, Texas, on November XX, 1965. She reported that they moved to Galveston, Texas, where their two children were born. Ms. M~ stated that they moved to S~, Louisiana, around 1969. She reported that she and Mr. M~ separated in 1970 or 1971. Ms. M~ reported that she then moved to Homer, Louisiana, and she believed that Mr. M~ moved to Orange, Texas. She stated that she saw Mr. M~ in the late 1970s or early 1980s in Shreveport, Louisiana, where he was then living and working. Ms. M~ stated that Mr. M~ told her they were still married and that he had no intention of ever seeking a divorce from her. Ms. M~ indicated that Mr. M~ did not mention any other marriages. She indicated that her sister, who lived in Orange, Texas, told her Mr. M~ later moved back to Orange, Texas. Ms. M~ reported that she moved to Bossier City, Louisiana in October 1990. She stated as far as she knew, she and Mr. M~ were still married at the time of his death.

11) Divorce Records Searches: The agency requested divorce records searches between Mr. M~ and Ms. M~ from 1965 through 1993 and between Mr. M~ and Ms. D~ from 1970 through 1993 in the following areas:

a) Homer, Louisiana: Neither the Claiborne Parish nor Webster Parish Clerks of Courts had records of divorce between Mr. M~ and Ms. M~ or Ms. D~.

b) Shreveport, Louisiana: The Parish clerk found no divorce records.

c) Bossier City, Louisiana: The Parish clerk found no divorce records.

d) Starks, Louisiana: No divorce documents were found for either party.

e) Pleasant Hill, Louisiana: The Sabine Parish Clerk of Court verified that there were no records of divorce between Mr. M~ and Ms. M~ or Ms. D~.

f) Galveston, Texas: There were two divorce actions filed between Mr. M~ and Ms. M~, but neither party followed through. Thus, the divorce was never finalized. There was no record of a divorce between Mr. M~ and Ms. D~.

g) Orange County, Texas: There was no record of a divorce for either party.

h) Seattle, Washington: The agency was unable to obtain records from King County. The agency concluded that it was unlikely that Mr. M~ would have obtained a divorce with any of the parties in Seattle, Washington, and, thus, did not request further search of these records.

i) Jefferson County, Texas: There was no record of a divorce for either party.

12) Divorce Records Search: The agency requested divorce records searches between only Mr. M~ and Ms. M~ from 1965 through 1993 in the following areas:

a) Center, Texas: There was no record of divorce in Shelby County.

b) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

13) Divorce Records Search: The agency requested divorce record searches between only Mr. M~ and Ms. D~ from 1970 through 1993 in the following areas and counties:

a) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

b) Center, Texas: There was no record of divorce in Shelby County.

c) Rayne, Louisiana: The Lafayette Perish Clerk of Court found no divorce record.

d) Orleans Parish, Louisiana: There were no divorce records located.

14) Marriage Records: The agency requested the following marriage record searches:

a) Shelby County, Texas: Mr. M~ and Ms. H~ married on December XX, 1974.

b) Orange County, Texas, Online Search: Mr. M~ and Ms. D~ married on March XX, 1970.

c) Orange County, Texas, Volume Search: Mr. M~ and Ms. M~ married on November XX, 1965.

The Social Security Act provides that a claimant is entitled to surviving spouse's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.335(a) (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. § 404.345 (2009). In addition, a claimant can meet the relationship requirement if she would be able to inherit a wife's share of the number holder's personal property under state law if the number holder were to die without leaving a will. 20 C.F.R. § 404.345 (2009). The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id. Permanent home means the number holder's true and fixed home or legal domicile. 20 C.F.R. § 404.303 (2009). In this case, Mr. M~ died while domiciled in Texas. Thus, Texas law is controlling.

Every marriage entered into in Texas is presumed valid unless expressly void or expressly voidable and the marriage is annulled. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Under Texas law, a marriage is void if it is "entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." Tex. Fam. Code Ann. § 6.202 (Vernon 2009). Here, Ms. D~'s marriage to Mr. M~ was later than Ms. M~'s marriage to Mr. M~. The evidence shows Ms. D~ married Mr. M~ on March XX, 1970, in Orange County, Texas. The agency's search of divorce records uncovered no evidence of a divorce between Ms. D~ and Mr. M~. However, the agency obtained evidence that Ms. M~ married Mr. M~ five years before his marriage to Ms. D~, on November XX, 1965, in Orange County, Texas. The agency found no record of a finalized divorce between Ms. M~ and Mr. M~. Thus, Ms. D~ and Mr. M~ entered into their marriage at a time when Mr. M~ was married to Ms. M~. This preexisting marriage between Ms. M~ and Mr. M~, if sufficiently proven, would render the later marriage between Ms. D~ and Mr. M~ void.

The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. Texas Employer's Ins. Ass'n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each prior marriage until the validity of a prior marriage is proven. Tex. Fam. Code Ann. § 1.102 (Vernon 2009). The presumption increases over time, by the spouses' acknowledgments of the marriage, and by the births of children. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. The burden of proving that the most recent marriage is invalid is on the party seeking to invalidate the marriage. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Here, we have evidence and allegations that Mr. M~ married several different spouses without obtaining a divorce. Because the agency received competing claims for surviving spouse benefits from Ms. M~ and Ms. D~, we consider the validity of these two marriages./ Because Ms. D~'s marriage to Mr. M~ is more recent than Ms. M~'s marriage to Mr. M~, Ms. M~ has the burden of proving that she was married to Mr. M~ at the time he married Ms. D~ and that neither she nor Mr. M~ obtained a divorce from the other. See Chandler v. Chandler, 991 S.W.2d 367, 393 (Tex. App. El. Paso, 1999). The agency conducted a volume search of the marriage records in Orange County, Texas, and located the marriage license for Ms. M~ and Mr. M~. In addition, the agency conducted searches of the divorce records in each Texas county or Louisiana parish where either Ms. M~ or Mr. M~ were known to reside. The agency found no divorce record. Ms. M~ was not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App. 1985). Thus, the evidence would suggest that Ms. M~ and Mr. M~ were never divorced.

Mr. M~'s statements on his disability application suggested that he had resided in the following Texas counties: Galveston, Jefferson, and Orange. He was born in Pleasant Hill, Louisiana, within Sabine Parish. The agency discovered that two divorce actions were filed in Galveston County between Mr. M~ and Ms. M~, but neither divorce was finalized. In Texas, a marriage can only be dissolved by court decree or death; there is no common-law divorce. Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). The divorce action filings in Galveston County did not result in a court decree granting a divorce. Thus, the filings did not dissolve the marriage between Ms. M~ and Mr. M~. The agency's search of the divorce records in Jefferson County, Orange County, and Sabine Parish also established that there had been no divorce between Ms. M~ and Mr. M~.

Ms. H~' application for surviving child benefits on L~s behalf stated that she and Mr. M~ married in Center, Texas, within Shelby County, Texas. The agency found no record of divorce between Ms. M~ and Mr. M~ in Shelby County. Ms. H~ also reported that Lowanda was born in Seattle, Washington, within King County. The agency was unable to search the divorce records in King County, but concluded that it was unlikely that Mr. M~ obtained a divorce from Ms. M~ in that county. Ms. M~ was only required to prove the non-existence of a divorce in jurisdictions where the parties might reasonably have been expected to pursue them. Medrano, 701 S.W.2d at 341. According to statements the agency provided, Mr. M~ was a truck driver who traveled across the country, but there is no evidence that he changed his residence outside of Texas or Louisiana. Because there is no evidence indicating that Mr. M~ ever resided in Seattle, Washington, it would not be reasonable to expect that he would have obtained a divorce there. Thus, the unavailability of a divorce record search from King County, Washington does not affect this case.

Ms. M~ reported that she has lived in following areas: Orange County, Texas; Galveston County, Texas; Starks Parish, Louisiana; Claiborne Parish, Louisiana; Webster Parish, Louisiana; and Bossier City, Louisiana. In addition, she stated that she was aware that Mr. M~ lived in Orange County, Texas, and Bossier City/Shreveport, Louisiana, after their separation. The agency's search of these areas showed that neither party obtained a divorce in any of these jurisdictions.

Ms. D~ indicated that she and Mr. M~ had married in Orange County, Texas. As noted above, the agency's search of the divorce records in Orange County, Texas, established that neither Ms. M~ nor Mr. M~ obtained a divorce in that county. Ms. D~ stated that after Mr. M~ shot her, he was arrested and brought to jail in Franklin, Louisiana. The agency's search of divorce records in St. Mary's Parish, Louisiana, where Franklin, Louisiana, is located, showed no divorce between Ms. M~ and Mr. M~. Ms. D~ had no other information about where Mr. M~ might have lived, as she had no further contact with him.

Based on the evidence presented, we conclude that the agency has searched the divorce records in every jurisdiction where Ms. M~ or Mr. M~ might reasonably have obtained a divorce. See Medrano, 701 S.W.2d at 341. The evidence establishes that Mr. M~ was married to Ms. M~ at the time that he married Ms. D~, and that neither Mr. M~ nor Ms. M~ ever divorced the other. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. See Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. 2003). Here, Mr. M~ did not acknowledge his marriage to Ms. M~ or Ms. D~ in his disability application. However, Ms. M~ reported that she spoke with Mr. M~ in the late 1970s or early 1980s and that he acknowledged that they were still married. Mr. M~ also fathered two children with Ms. M~ and no children with Ms. D~. A spouse's acknowledgments of the marriage and the births of children are factors to consider in determining whether the presumption applies. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. We conclude that the evidence that Ms. M~ and Mr. M~ did not divorce rebuts the presumption of validity of the marriage between Ms. D~ and Mr. M~. Because the marriage between Ms. D~ and Mr. M~ was void, Ms. D~ was not Mr. M~'s spouse under Texas law.

Ms. D~ also does not alternatively qualify as Mr. M~'s surviving spouse as an individual who could inherit a wife's share of Mr. M~'s personal property under Texas intestate succession laws. 20 C.F.R. § 404.345 (2009). Even though a marriage may be void because of the existence of a prior marriage, Texas recognizes a putative marriage as giving certain property rights to a spouse that enters into the marriage in good faith. See Garduno v. Garduno, 760 S.W. 2d 735, 738-39 (Tex. App. - Corpus Christi 1988, no writ); see also Consolidated Underwriters v. Kelly, 15 S.W.2d 229 (Tex. Comm'n. App. 1929, judgm't adopted). Good faith requires that the putative spouse be unaware of the cause that prevents a valid marriage. Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex. App. - Waco 1972, writ denied). Here, Ms. D~ reported that she was unaware that Mr. M~ had ever been married prior to their marriage. Thus, she could potentially qualify as a putative spouse.

Her status as a putative spouse, however, would not permit her to inherit Mr. M~'s intestate property. Under Texas law, a putative spouse is allowed the same right in property acquired during the marital relationship as if she were a lawful spouse. Davis v. Davis, 521 S.W.2d 603, 606 (Tex. 1975). However, this property right extends only to her own one-half community or joint tenancy interest in property the couple acquired during the putative marriage. It does not entitled the putative spouse to inherit any share of the decedent's one-half property interest. Hammond v. Hammond, 108 S.W. 1024 (Tex. Civ. App. 1908). Even though Ms. D~ may qualify as a putative spouse, she cannot inherit a wife's share of Mr. M~'s intestate property under Texas law. Thus, she cannot qualify for surviving spouse benefits under Mr. M~'s record.

Finally, we conclude that Ms. D~ cannot qualify for surviving divorced spouse benefits under Mr. M~'s record. An individual may be entitled to surviving divorced spouse's benefits if she is the number holder's surviving divorce spouse and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.336 (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law or were deemed to be validly married under state law. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. §§ 404.336, 404.345, 404.346 (2009). The standard for the validity of a marriage under state law is the same for surviving spouse benefits and surviving divorced spouse benefits. 20 C.F.R. § 404.345 (2009). Because Ms. D~'s marriage to Mr. M~ was void under Texas state law, she cannot establish that she was ever validly married to him. Ms. D~ also cannot satisfy the requirements of a deemed valid marriage because this requires that the number holder and the deemed spouse be living in the same household at the time of the number holder's death. Ms. D~ acknowledged that she had not seen Mr. M~ for at least 25 years. Thus, she was never validly married or deemed validly married to Mr. M~ and cannot qualify for surviving divorced spouse benefits under his record.

In conclusion, it is our opinion that Ms. D~ cannot qualify for surviving spouse benefits or surviving divorced spouse benefits on Mr. M~'s record.

Michael M~
Regional Chief Counsel

By: James D. S~
Assistant Regional Counsel

D. PR 07-010 Entitlement to Widow's Benefits Where Divorce was Never Obtained and Husband Remarried

Date: October 30, 2006

1. Syllabus

Under Texas law a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. The presumption in favor of the validity of the most recent marriage may be rebutted by evidence which negates dissolution of the previous marriage. Determining whether the presumption applies is a factual decision. If claimant is unable to carry his/her proof, the presumption of validity attaching to NH's marriage to last wife will continue.

2. Opinion

You have asked for advice as to whether Ms. B~ can receive widow's benefits based on the Social Security record of her deceased husband, J~. Your request for advice raises two specific questions. The first is whether G~ is entitled to receive benefits as Mr. B~'s widow. If she is not, the second question is whether she can receive benefits based on Mr. B~'s Social Security record as a surviving divorced wife. Based on the facts of this case, we believe you would be justified in concluding that Ms. G~ is not entitled to widow's benefits on Mr. B~'s record.

Factual Background

The memorandum you forwarded with your request indicates that G~ (Claimant) and J~ were married on June XX, 1967, in the state of Louisiana. Mr. B~ married V~ on May XX, 1979, in L~, Texas. Mr. B~ died on March XX, 2006, and was domiciled in the state of Texas at the time of his death.

In a prior claim for disability benefits, Claimant reported that her marriage to Mr. B~ ended in divorce in January 1974. According to a statement made by Claimant in conjunction with her current claim, she and Mr. B~ lived together for 11 years and separated in 1978. Claimant reported that she was never served or notified of any divorce proceedings and that she and Mr. B~ never discussed divorce.

Field Office employees requested a search of divorce records in Harrison and Gregg counties in Texas for the years 1969 to 1979 which did not show any record of a divorce between Mr. B~ and Claimant. An internet search of the state of Texas divorce records for the same time period also showed no record of a divorce.

V~ verified that she married Mr. B~ on May XX, 1979, in L~, Texas. She stated that the marriage license was filed in M~, Texas. V~ thought Mr. B~ was previously married, but was not certain. She did not know the name of the possible previous spouse, the length of the previous marriage, or when, or if, the divorce was finalized.

Analysis

A. Is Claimant Mr. B~'s Widow?

The Social Security Act provides that an applicant is the wife or 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." 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. Because Mr. B~ was domiciled in Texas at the time of his death, Claimant will be considered his widow if Texas courts would find them validly married at the time of his death.

Every marriage entered into in Texas "is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter." Tex. Fam. Code Ann. § 1.101 (Vernon, Westlaw through 2006 sesion). Chapter 6, section 202 provides:

a. A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. Tex. Fam. Code Ann. § 6.202 (Vernon, Westlaw through 2006 sesion). Therefore, if Mr. B~ was still married to Claimant when he married Virginia B~, his marriage to Virginia B~ is void under Texas law.

Texas law, however, presumes the validity of the most recent marriage.

When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.

Tex. Fam. Code Ann. § 1.102 (Vernon, Westlaw through 2006 sesion). Therefore, Claimant has the burden to present evidence to overcome the presumption that Mr. B~'s marriage to Virginia B~ was valid. Chandler v. Chandler, 991 S.W.2d 367, 393 (Tex. App. El. Paso, 1999). "This presumption is one of the strongest, if not the strongest, known to law." Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. 2003). Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption applies is a factual decision. See id. Therefore, the question is whether a fact-finder would find that Claimant has produced sufficient evidence to overcome the presumption that Mr. B~'s marriage to Virginia B~ was valid.

The presumption in favor of the validity of the most recent marriage "may be rebutted by evidence which negates dissolution of the previous marriage." Id. In this case, the evidence that Claimant's marriage to Mr. B~ was never dissolved includes her 2006 statement reporting that she was never notified of any divorce proceedings and the absence of a Texas divorce decree dissolving the marriage of Claimant to Mr. B~.

Although some evidence of the absence of a divorce has been presented, the search of records is incomplete. The parties were married in and lived in Louisiana, but Louisiana divorce records have not been researched. Claimant currently lives in Kansas, and a search of those divorce records has not been completed either. Claimant is not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App. 1985). At present, the search of records is incomplete in some likely jurisdictions.

Additionally, "[t]he presumption may outweigh positive evidence to the contrary and its strength increases with the lapse of time, acknowledgement by the parties to the marriage, and the birth of children." Id. In an earlier claim for disability benefits, Claimant made a statement to the Agency that her marriage to Mr. B~ ended in divorce in 1974. Claimant's statement that she and Mr. B~ had divorced increases the strength of the presumption in favor of the validity of Mr. B~'s second marriage. Furthermore, according to Claimant's statements, she and Mr. B~ had not lived together for at least 28 years prior to his death. Mr. B~ and Virginia B~ had lived together as a married couple for over 26 years at the time of his death. The length of Mr. B~'s marriage to Virginia B~ increases the strength of the presumption of the validity of their marriage. See id.; see also Osuna v. Quintana, 993 S.W.2d 201, 210 (Tex. 1999); Cardwell v. Cardwell, 195 S.W.3d 856, 858-59 (Tex. App.-Dallas 2006) (putative spouse who acted in good faith receives the same rights in property as lawful spouse). Considering the evidence as a whole, it is reasonable to assume that a fact-finder would determine that the evidence of the absence of a divorce does not overcome the presumption that Mr. B~ and Virginia B~'s 26-year marriage was valid.

With the current evidence, a fact-finder would likely find Mr. B~'s marriage to Virginia B~ to be valid, and therefore, Virginia B~ is Mr. B~'s widow. Because Claimant would not be considered Mr. B~'s widow under Texas law, she is likewise not his widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. Based on the foregoing analysis and facts of this case, we believe Claimant, Grady B~, is not entitled to widow's benefits based on the Social Security record of James B~.

B. Is Claimant Entitled to Surviving Divorced Wife Benefits?

The Act provides that widow's and surviving divorced wives can receive widow's insurance benefits if they meet certain criteria. See 42 U.S.C.A. § 402 (e). In order to be a surviving divorced wife, one of the requirements is that the marriage must have lasted at least 10 years. See 42 U.S.C.A. § 416 (d)(2); 20 C.F.R. § 404.336. Therefore, the question is whether Claimant and Mr. B~ were married for 10 years.

Claimant has the burden of proof that she is eligible for surviving divorced spouse benefits. See 5 U.S.C.A. § 556 (d). Therefore, Claimant has the burden to prove she was married to Mr. B~ for 10 years or more. In her statement related to her claim for widow's benefits, Claimant reported that she married Mr. B~ on June XX, 1967, lived with him for 11 years, they separated in 1978, and that she did not know of any legal proceedings to dissolve their marriage. If this statement is true, Claimant and Mr. B~ were married over 10 years, and she may be a surviving divorced spouse. However, in an earlier application for disability benefits, Claimant provided a contrary statement that she and Mr. B~ were divorced in 1974. If Claimant's marriage to Mr. B~ ended in 1974, she is not eligible for surviving divorced spouse benefits because the marriage lasted less than 10 years.

Because of Claimant's inconsistent statements, we believe she has not carried her burden to prove she was married to Mr. B~ for 10 years. However, should additional evidence become available to show Claimant and Mr. B~ were married for at least 10 years, Claimant may qualify for surviving divorced spouse benefits based on Mr. B~'s record. Examples of evidence that would tend to show that Claimant and Mr. B~ remained married for 10 years include: jointly filed tax returns, insurance policies, leases, and titles or deeds showing they purchased property jointly dated after June 19, 1977. See Martin v. Sec'y of Health & Human Servs., 875 F.2d 865, at *2 (6th Cir. 1989) (unpublished table decision); Hudes v. Callahan, No. 96 Civ. 4283(AGS) 1997 WL 570560, at *3 (S.D.N.Y. Sept. 12, 1997). In addition, development would be necessary to ensure that claimant meets the other requirements of 20 C.F.R. § 404.336 before surviving divorced spouse benefits were awarded.

Based on the foregoing analysis and facts of this case, we believe Claimant, Grady B~, is not entitled to widows' benefits or surviving divorced spouse benefits based on the Social Security record of James B~.

Frank V. S~
Regional Chief Counsel

By: Angela T~-M~
Assistant Regional Counsel