Adjudication Manual Marriage Rules

Applications for benefits almost always require information on marriages – both current and previous. If marriage information is difficult to come by, all is not lost. Here are the rules that VA applies pertaining to marriage dates and the place of marriage or whether individuals were considered marriage or not. There are also certain evidentiary requirements and issues for proving the death of the veteran.

Marriage Deemed Valid A claimant filing for death benefits as the surviving spouse of a veteran must establish that the claimant and the veteran had a valid marriage. In most cases, this is accomplished by proving the existence of a legal marriage under State law. However, it is also possible under certain circumstances to “deem valid” for Department of Veterans Affairs (VA) purposes a marriage which is not valid under State law.

The fact that benefits were paid for a person as the spouse of the veteran during the veteran’s lifetime does not automatically establish that person’s status as the surviving spouse after the veteran’s death.

The surviving spouse claimant must submit satisfactory evidence of his/her status as the surviving spouse of the veteran based on a marriage that is either legal or deemed valid and must meet the other requirements set forth in this topic.

Remarriage Generally, remarriage of the surviving spouse after the death of the veteran will void any benefits that were available to the surviving spouse including Death Pension and DIC. Here are some exceptions to this rule

38 CFR § 3.55 Marriage void, terminated or annulled

Marriage Was Void or Annulled Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage:  Was void, or  Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion.

Marriage Terminated Prior to November 1, 1990 On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage:

 Has been terminated by death, or

 Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion.

DIC Benefits for Terminated Remarriage On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity Compensation (DIC), unless the Secretary determines that the divorce or annulment was secured through fraud or collusion.

Non--Married Relationship  On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990.

 On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity Compensation (DIC) to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse.

Benefits for a surviving spouse who remarries after age 57 (presumed currently married) On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to

 DIC -- dependency and indemnity Compensation under 38 U.S.C. 1311,  medical care for survivors and dependents under 38 U.S.C. 1781,  educational assistance under 38 U.S.C. chapter 35, or  housing loans under 38 U.S.C. chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section.

Divorce or Annulment Documentary proof of dissolution of all prior marriages of both parties is required if dissolution of prior marriages cannot be established based on the claimant’s certified statement. This means that the statement in the application attesting to the dates and places of the divorces or annulments will be sufficient evidence for proof unless those facts are not furnished.

Acceptable documentary evidence for termination of a prior marriage through annulment is a copy or abstract of the annulment decree.

The only acceptable documentary evidence for termination of a prior marriage through divorce (other than the original divorce decree) is a copy or abstract of a final decree of divorce.

Some jurisdictions provide a two-step process for dissolving a marriage:

 first: an interlocutory decree of divorce is granted, and  second: after a passage of a specified period of time, a final divorce decree is entered.

Notes:  The parties continue to be married until the final divorce decree is granted.  An interlocutory decree of divorce does not dissolve a marriage.

Certain “marriages” have no legal effect even though the parties may have gone through a marriage ceremony, and registered the marriage. Such marriages are legally void because the parties did not satisfy the legal requirements for entering into a marriage at the time of the alleged marriage. Not all legally defective marriages are void. For example, in most jurisdictions marriage by underage individuals is not automatically void.

Generally, a marriage is considered void only if the defect is fundamental. Grounds for voiding a marriage vary from state to state, but in most States a marriage is void if either party is already married at the time of the marriage, or if the parties are closely related.

If a marriage is determined to have been void, there is no need to dissolve it through divorce or annulment before entering into a subsequent marriage. Likewise, a remarried surviving spouse whose subsequent marriage is annulled or declared void may reestablish entitlement as a surviving spouse.

When a claimant who was divorced from the veteran at the time of the veteran’s death attempts to establish entitlement as the veteran’s surviving spouse based on a court decree setting aside or vacating the divorce, obtain all relevant documents, such as the court decree that set aside the divorce, and refer the case to Regional Counsel for an opinion on the issue of the validity of the order setting aside the divorce.

A determination by Regional Counsel that the decree setting aside the divorce is valid means that the claimant was the legal surviving spouse of the veteran (assuming the marriage can be established in the first place).

38 CFR § 3.53 Continuous cohabitation. (a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

(b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section.

The claimant must meet the continuous cohabitation requirement of 38 CFR 3.50(b)(1) to qualify as the surviving spouse of a veteran for VA purposes. This requirement is most commonly met by virtue of the surviving spouse having lived continuously with the veteran from the date of marriage to the date of the veteran’s death; however, the requirement is also met in any of the following occurred.

1. The veteran and claimant were living apart at the time of the veteran’s death due to marital discord, but the claimant was not materially at fault for the separation, or any fault on the part of the claimant was insignificant.

2. Fault or the absence of fault is determined based on an analysis of conduct at the time of the separation. This means that the conduct of the spouse after the separation is not a factor in determining continuous cohabitation and may not be used as a basis for denying benefits.

Separations occurring during the course of the marriage, regardless of fault, are irrelevant if the parties are no longer estranged at the time of the veteran’s death.

The spouse of a deceased veteran who was separated from the veteran due to the fault of the veteran has no affirmative obligation to attempt to reconcile with the veteran. As long as the spouse is not materially at fault in the separation, the continuous cohabitation requirement is met. Note: It is irrelevant that the parties lived apart for many years prior to the veteran’s death, as long as the spouse was not at fault for the separation.

Evidence for the Marriage Successful development of a marital relationship for VA purposes requires knowledge of where the claimed marriage took place, and the requirements for establishing a legal marriage in the jurisdiction where the marriage took place.

VA accepts the oral, written, or faxed statement of a claimant as proof of marriage provided the statement contains the

1. date of marriage (month and year), and 2. location of the event (city and state.)

Before a marriage may be established for VA purposes, it is always necessary to have the claimant’s statement of marital history. The statement of marital history must

1. show all prior marriages of both parties, and 2. include the following information: a. the first and last name of prior marriage partners b. the current spouse’s Social Security number (SSN) c. how the prior marriages terminated (death, divorce, annulment) d. the date the prior marriages terminated (month and year, at a minimum), and e. the place where the prior marriages terminated (city and state).

Documentary evidence of marriage is required if

 the claimant does not reside within a State (outside of the United States)  the claimant’s statement raises a question as to its validity  the claimant’s statement conflicts with other evidence of record, or  there is a reasonable indication of fraud or misrepresentation.

In all jurisdictions in the U.S. and most other places in the world, a marriage cannot be contracted if either party is already married. Establishment of a legal marriage always implies a finding that the parties to the marriage were free to marry at the time of the alleged marriage. If either party was married previously, the current marriage may not be established unless the prior marriage is

1. terminated by a. death b. divorce c. annulment, or 2. determined to be void under State law.

Documentary proof of dissolution of all prior marriages of both parties is required if dissolution of prior marriages cannot be established based on the claimant’s certified statement.

Request documentary evidence of a marriage when the claimant’s statement is not sufficient to establish the marriage.

Primary evidence consists of a copy or abstract of the public record of a marriage, or a copy of the church record of marriage, containing sufficient data to identify the

1. parties involved 2. date and place of the marriage, and 3. number of prior marriages, if shown on the official record.

Note: Telephone the claimant, use the MARRIAGE CERTIFICATE field on the BDN 204 screen, or send a locally-generated letter via MAP-D to request a marriage certificate.

If primary evidence is unavailable, the marriage may still be established by submission of the following evidence in the order of preference listed:

 an official report from the service department as to a marriage that occurred while the veteran was in service  an affidavit of the clergyman or magistrate who officiated  the original certificate of marriage, if VA is satisfied that it is genuine and free from alteration  affidavits or certified statements signed by two or more witnesses to the ceremony, or  any other secondary evidence that reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred.

Common Law Marriages

Understanding Common Law Marriages In some jurisdictions it is possible to contract a marriage without a ceremony and without registration of the marriage. Common law marriages are entered into by agreement of the parties and do not require a formal ceremony. Although some jurisdictions provide for registration of informal marriages, a common law marriage can usually be established without registering with any governmental entity. A copy of the document registering the informal marriage may be accepted to establish the marriage from the date it was registered.

Once a common law marriage has been established in a jurisdiction recognizing common law marriages, it is a valid marriage in all respects, and is no different from a ceremonial marriage. The marriage cannot be terminated except through

 divorce  the death of one of the marriage partners, or  annulment.

There is no such thing as a “common law divorce.” A divorce is a divorce whether it is from a common-law marriage or a documented marriage. A valid common law marriage established in a jurisdiction recognizing such marriages continues to be valid if the parties later move to a jurisdiction not recognizing common law marriages.

The legal requirements for establishing a common law marriage vary from jurisdiction to jurisdiction. Per Burden v. Shinseki, the Department of Veterans Affairs (VA) must use the evidentiary standard of the state in which a common law marriage took place in order to determine the validity of a common law marriage. Typically, all of the elements listed below must be present before a common law marriage may be established.

Element Description An agreement Often this agreement is explicit, but it can be inferred between the parties from the conduct of the parties. The statement of one of to be married the parties that there was no agreement to be married is not necessarily conclusive, especially when  the statement is self-serving, and  there is evidence that the parties held themselves out as married. Cohabitation The parties actually lived together for some period of time. Holding out to the The parties represented themselves to members of the public as married community as spouses. It is not necessary to have used the same last name.

Establishing that the parties held themselves out to the public as married is probably the most important element in the development process. This may be established by

 statements of persons in the community who knew the parties as spouses, and  documents which show that the parties represented themselves as married.

Evidence that may prove parties held themselves out to the public as married include

 lease agreements  joint bank statements  utility bills  tax returns  insurance forms  employment records, and  any other document requiring the individual to indicate marital status. In jurisdictions where marriages other than by ceremony are recognized, affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all the facts and circumstances concerning the alleged marriage are required. The facts and circumstances required include

 the agreement between the parties at the beginning of their cohabitation  the period of cohabitation  the places and dates of residences, and  whether children were born as a result of the relationship.

Supplement the secondary evidence with affidavits or certified statements from two or more persons who know, as the result of personal observation, the reputed relationship that existed between the parties to the alleged marriage, including

 the periods of cohabitation  places of residence  whether the parties held themselves out publicly as spouses, and  whether the parties were generally accepted as such in the communities in which they lived.

The validity of common law marriages by State.

State Status of Common Law State Status of Common Law Alabama recognized Montana recognized Alaska 08/01/1917 Nebraska 08/03/1923 Arizona 10/01/1913 Nevada 03/29/1943 New Arkansas not recognized Hampshire not recognized California 1895 New Jersey 12/01/1939 Colorado recognized New Mexico not recognized Connecticut not recognized New York 04/29/1933 North Delaware not recognized Carolina not recognized District of Columbia recognized North Dakota 07/01/1890 Florida 01/01/1968 Ohio 10/10/1991 Georgia 01/01/1997 Oklahoma recognized Hawaii not recognized Oregon not recognized Idaho 01/01/1996 Pennsylvania 01/01/2005 Illinois 07/01/1905 Puerto Rico not recognized Indiana 01/01/1958 Rhode Island recognized South Iowa recognized Carolina recognized Kansas recognized South Dakota 07/01/1959 Kentucky not recognized Tennessee not recognized Louisiana not recognized Texas recognized 03/03/1987 under very limited circumstances per Utah Code Section 30-1- Maine not recognized Utah 4.5. Maryland not recognized Vermont not recognized Massachusetts not recognized Virginia not recognized Michigan 12/31/1956 Washington not recognized

Minnesota 04/26/1941 West Virginia not recognized Mississippi 04/05/1956 Wisconsin 01/01/1918 Missouri 06/20/1921 Wyoming not recognized

Developing a Claim for a State Where Common Law Is Not Recognized Follow the steps in the table below if the parties to a claimed common law marriage have lived only in jurisdictions that

 do not currently recognize common law marriages, and  have not recognized common law marriages since the time of the inception of the parties’ cohabitation.

Step Action Is the claimant a surviving spouse alleging a common law marriage to the Veteran?  If yes, go to M21-1, Part III, Subpart iii, 5.C.5.b.  If no  deny the claim based on the lack of a marital relationship without submission for a legal opinion, and 1  go to Step 2. Prepare a two-signature administrative decision  using the format in M21-1, Part III, Subpart v, 1.A.3. and  referring to the information in M21-1, Part III, Subpart iii, 2 5.C.7.

Developing a Claim for a Survivor for a State Not Recognizing Common Law In VAOPGCPREC 58-91, the General Counsel held that lack of residence in a jurisdiction recognizing common law marriages is not a bar to establishing a common law marriage for a surviving spouse claimant. The common law marriage could be “deemed valid” under 38 CFR 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. The impediment would be the jurisdiction’s non-recognition of common law marriages.

Here are the steps that the Regional Office will take for establishing a common law marriage against the claimant’s will. This may be a strange position for VA to take, but it is necessary to protect the integrity of claims that require means testing. Some veteran claimants will attempt to hide assets and income from a common law spouse by claiming no marriage exists even though the couple is cohabitating. These assets and income could disqualify for Pension benefits were it not for the fact that the claimant is trying to hide them.

Establishing a Common Law Marriage against the Claimant’s Will A claimant and his or her spouse may live together in a jurisdiction recognizing common law marriages under circumstances meeting requirements for a common law marriage, and choose not to recognize or report the marriage because the spouse has income or net worth that would

9 adversely affect entitlement to benefits. This desire to hide a marriage typically applies to applications for Pension. The Veteran Service Representative must establish that a marriage exists if it appears evident that the veteran claimant is trying to hide that fact.

The claimant’s statement that there is no agreement to be married is one piece of evidence to consider in determining whether a common law marriage exists. However, the statement may be contradicted by other evidence, such as evidence that the claimant held himself or herself out publicly as the spouse of the other person. To determine whether a common law marriage is in force when disavowed by the claimant the Regional Office will

 request a field examination, if necessary  initiate complete development if  evidence is received that a common law marriage exists, and  establishing the marriage would adversely affect entitlement to benefits, and  evaluate the evidence received.

With these cases that require investigation and evidence that refutes statements made by the claimant, the Regional Office must prepare a two-signature administrative decision in accordance with the instructions in M21-1, Part III, Subpart iii, 5.C.7 to recognize or reject a common law marriage on the merits.

The veterans service Representative will prepare a two-signature administrative decision that

 clearly articulates the evidence considered  discusses the comparative weight assigned to each piece of evidence  provides an evaluation of the credibility of the evidence, and  discusses the reason VA rendered that decision.

Evidence for Death The fact of death may be established on the basis of any one of the following forms of primary evidence:

 an official death certificate  a copy of a coroner’s report of death or a verdict of a coroner’s jury  a death certificate signed by a medical officer if death occurred in a hospital or institution under the control of the U.S. Government  a clinical summary or other report showing the fact and date of death signed by a medical officer if death occurred in a hospital or institution under the control of the U.S. Government  an official report of death of a member of a uniformed service from the Secretary of the department concerned if death occurred while the deceased was o on the retired list o in an inactive duty status, or o on active duty  a U.S. consular report of death bearing the signature and seal of the U.S. consul if death occurred abroad, or  an official report of death from the head of the department concerned if the

o deceased was, at the time of death, a civilian employee of a U.S. Government agency, and o death occurred abroad.

When primary evidence cannot be furnished, the claimant must state the reason why. Once the claimant explains the reason for the lack of primary evidence, the fact of death may be established on the basis of the following secondary evidence:

 a finding of the fact of death made by another Federal agency in the absence of evidence to the contrary, or  affidavits from persons who have o personal knowledge of the fact of death, and o viewed the body and know it to be the body of the person whose death is being established

Note: Affidavits must set forth all the facts and circumstances concerning the death such as the date, place, time, and cause thereof. In the absence of the primary or secondary evidence outlined in M21-1MR, Part III, Subpart iii, 5.B.8. b and c, VA may make a finding of death if the fact of death is shown by a preponderance of competent evidence. An administrative decision is required.

Death Determined by a Seven-Year Absence No State law providing for presumption of death shall be applicable to claims for benefits under laws administered by VA. If evidence is submitted, establishing the continued and unexplained absence of any individual from home and family for a 7-year period, death shall be considered sufficiently proved. Except in a suit brought pursuant to section 784, Government insurance, the finding of death by VA shall be final and conclusive. See VA Form 21-1775, Statement of Disappearance.