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Adjudication Manual Marriage Rules

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Adjudication Manual Marriage Rules 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 1 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: 2 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. 3 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.
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