The claimant for mother's benefits cannot qualify as the NH's putative spouse under Colorado law because she lacked a good faith belief that she and the NH were legally married. She knew of his prior marital relationship with another woman and encouraged him to take legal action to dissolve it. The other woman can qualify as the NH's common-law spouse because she and the NH lived together and held themselves out to the community as married in a mutual and open assumption of a marital relationship. The Commissioner is not bound by the order issued by the District Court stating that the claimant and the NH had a putative marriage. The issue of her spousal status does not appear to have been genuinely contested under SSR 83-37c, and the Colorado Supreme Court would not find that the meets the legal definition of a putative spouse under Colorado law.

You requested an opinion concerning whether a putative marriage existed between Andrea K~ and deceased number holder Michael R~ for purposes of determining spousal benefit eligibility when her "good faith" remains questionable but an Adams County District Court order declares her a putative spouse.

FACTS

The facts in this case are extensive. Michael D. R~ (Mr. R~) (~) and Cynthia L. S~ (Ms. S~) began living together in September of 1984 in Arvada, Colorado. (Cynthia S~'s Statement of Marital Relationship, April 22, 2002.) Ms. S~ was still married to Donald S~ at the time. (Colorado Divorce Detail of Cindy S~.) Ms. S~ claims that Mr. R~ knew that the divorce was not final from the time they began living together and was with her in court when the decree was entered on April 3, 1987. (Cynthia S~'s Statement of Marital Relationship.)

In January of 1985, Mr. R~ provided Ms. S~ with a diamond ring and began calling her "his wife." See id. Although there was never a formal ceremony, Ms. S~ claims that the two of them agreed to do this eventually. See id. Ms. S~ had a daughter from the previous marriage named Brynn, and Mr. R~ always referred to her as "his daughter." See id. Ms. S~ introduced Mr. R~ to acquaintances as her "husband." See id.

Sometime in 1985, they purchased a car together. (Cynthia S~'s Statement of Marital Relationship.) Later in 1990 or 1991, they purchased a piece of land in Grand Lake (Grand County Clerk and Recorder Details, April 24, 2003) where they planned to retire together. (Cynthia S~'s Statement of Marital Relationship.) They purchased another vehicle, a 1969 Ford Mustang, in 1995, and the bill of sale listed them as "Mike and Cindy R~." (Bill of Sale, September 3, 1995.)

Over the course of their 14-year relationship, Mr. R~ and Ms. S~ included their names on documents jointly as husband and wife. In 1992, they filed both federal and State joint income tax returns as married. (Individual Income Tax Returns, 1992.) In 1989, Ms. S~ also claimed Mr. R~ as a dependent spouse on her health insurance policies with Met Life and Metropolitan Insurance Companies. (Insurance Enrollment Form, December 21, 1989.) She included coverage for a spouse on her J.C. Penney Life Insurance Policy dated July 3, 1993. (J.C. Penney Life Insurance Company, Certificate of Insurance, July 3, 1993.)

According to Ms. S~, their friends and family considered them married. (Cynthia S~'s Statement of Marital Relationship.) Various people and entities referred to Mr. R~ and Ms. S~ as married. A wedding invitation in 1994 was addressed to "Mr. & Mrs. Mike R~."

The relationship went sour in January of 1998. Although the couple did not plan to end the relationship, they planned a 6-month separation. (Cynthia S~'s Statement of Marital Relationship.)

Soon thereafter, Mr. R~ entered into a relationship with another woman. Andrea K~ claims that Mr. R~ began living with her in March 1999. (Andrea K~'s Statement of Marital Relationship, April 16, 2002.) She claims that they lived together as "man and wife," and planned a formal ceremony that never came to fruition because Mr. R~ became ill. See id. Mr. R~ died on October 8, 2000, of respiratory problems from sepsis. (Death Certificate of Michael R~, October 17, 2000.)

Mr. R~ and Ms. K~ structured several accounts and transactions indicative of a marital relationship. Available evidence indicates that they held a joint account with First Nationwide Mortgage. (Monthly Mortgage Statement, October 3, 2000.) Mr. R~, a member of the International Brotherhood of Electrical Workers (IBEW), named Ms. K~ as a beneficiary spouse on his pension records. (Beneficiary Designation Card of Michael R~, October 13, 1999; see also Letter from the Trust for the IBEW Pension Benefit Fund, June 9, 2000.) Subsequent correspondence and a death claim check from the IBEW Pension Fund were addressed to her as "Andrea R~." (Letter from the Trust for the IBEW Pension Benefit, November 13, 2000.) Another life claim letter and check from the Line Construction Benefit Fund were addressed to Andrea M. K~-R~. (Letter from LINECO, October 24, 2000.) Mr. R~ included Ms. K~ on his HealthOne insurance policy. (HealthOne Medical Record, July 27, 2000.) They received a warranty deed as joint tenants on some property in Clear Creek County on December 3, 1999. (Warranty Deed, December 3, 1999.) In addition, they executed a warranty deed on their home in Thornton on February 26, 1999 (Warranty Deed, February 26, 1999.) They held joint accounts at Horizons North Credit Union. (Account Statement, June 30, 2001.) They did not, however, file joint tax returns, but rather, Mr. R~ filed as "single" and Ms. K~ as "head of household" in both 1999 and 2000. (Individual Income Tax Returns for both 1999 and 2000.) Ms. K~ maintains that she was not aware of a possible common law marriage between Mr. R~ and Ms. S~ until after Mr. R~'s death. (Andrea K~'s Statement of Marital Relationship.)

Following Mr. R~'s death, conflict arose between Ms. S~ and Ms. K~ over which was his legal spouse. The first death certificate issued on October 17, 2000, for Mr. R~ listed Ms. K~ as his spouse. (Death Certificate of Michael R~.) An amended death certificate issued on December 12, 2000 listed Ms. S~ as the spouse. (Amended Death Certificate of Michael R~.)

Ms. K~ applied for mother's benefits in November of 2000. She also filed for child's benefits on behalf of her two children, Jeremiah and Mariya, alleging they were stepchildren to Mr. R~. These claims were denied for failure to establish entitlement as a spouse, resulting in no stepchild relationships being established.

In July 2001, Ms. K~ obtained a court "stipulation to Spousal Status" from Adams County District court, declaring her the putative spouse of Mr. R~ as of the date of his death. (Adams County Court Order Approving Stipulation to Spousal Status, July 5, 2001 (hereinafter "Adams County Court Order").) The order was issued subsequent to an agreement between Ms. S~ and Ms. K~ in the settlement of Mr. R~'s estate. (Settlement Agreement Between Cynthia L. S~ and Andrea K~, June 27, 2001.) The order recognized Ms. S~ as the legal spouse on the date of death. (Adams County Court Order.) It also stated that Ms. K~ was a putative spouse and therefore entitled to claim all benefits available to her under the law arising from Mr. R~'s death. See id. Ms. K~ applied again for mother's benefits and child's benefits on April 18, 2002, and has protective filing to August 2001. (Application for Benefits, April 18, 2002.) In her application under penalty of perjury, she stated that she always knew about Ms. S~ and was always pushing Mr. R~ to do something legal to terminate that relationship. See id.

Upon further investigation, the district office where Ms. K~'s claims were taken discovered that Margaret R~, mother of the deceased number holder, did not consider Ms. K~ to be the spouse of her son. (Report of Contact with Margaret R~, April 23, 2002). She also states that Mr. R~ didn't either. See id.

DISCUSSION

Section 202 of the Social Security Act provides that a surviving spouse of an individual who dies insured may be eligible for mother's benefits. See 42 U.S.C. § 402(g)(1)._/1 The applicant must (1) not be married, (2) not be entitled to a surviving spouse's insurance benefit or old age benefits, (3) file an application, and (4) have a child of the deceased wage earner in his or her care. See 42 U.S.C. § 402(g)(1)(A)-(F); see also 20 C.F.R. § 404.339._/2 A "surviving spouse" is defined as a "widow," or surviving wife of the wage earner who was married to him for at least one year before the application. See 42 U.S.C. § 416(b)-(c). Likewise, the Act provides benefits for children, if, among other things the child for who benefits are applied for (1) was the insured person's child and (2) the child was dependent on a deceased wage earner. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. The definition of "child" includes those children who were stepchildren of the deceased wage earner for at least one year before an application for child's benefits is filed. See 42 U.S.C. § 416(e). Stepchildren are eligible for benefits only if the natural parent was legally married to the insured. See 20 C.F.R. § 404.357.

In deciding whether a claimant was legally married to an insured person, we look to the laws of the State where the insured had a permanent home when he or she died. See id. § 404.345; see also 42 U.S.C. § 416(h)(1)(A)(i) (applicant is wife of deceased insured individual if the courts of the State where applicant was domiciled at the time he died would find that such applicant and deceased insured individual were validly married at the time that he died); see also Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989) (stating that "the courts" refers to the highest court of that State in a proceeding contested by parties with opposing interests). "Permanent home" means the "true and fixed home" or legal domicile of a person, or the place that they intend to return whenever he or she is absent. See 20 C.F.R. § 404.303. In this case, no dispute exists as to whether Mr. R~ had a permanent home in Colorado when he died.

Colorado recognizes the doctrine of common law marriage. See Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907) (quoting Taylor v. Taylor, 50 P. 1049, 1049 (Colo. App. 1897)). A common law marriage in Colorado requires two elements. First, there must be an agreement to take each other in marriage. See Taylor, 50 P. at 1049. Agreement can be inferred from cohabitation and reputation that the parties "hold themselves out" to the community as husband and wife. Id. at 1049; see People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Second, there must be mutual and open assumption of a marital relationship. See Clayton Coal Co. v. Indus. Comm'n, 25 P.2d 170 (Colo. 1933). Generally, common law marriage cannot arise while one of the parties is still legally married to another until the legal marriage to the other person is dissolved or other impediment removed. See Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990); see also Clark v. Clark, 229 P.2d 142 (Colo. 1951); see also In re Morrow's Estate, 68 P.2d 36, 39 (Colo. 1937). The party asserting common law marriage carries the burden of proof, which is a preponderance of the evidence but evidence must also be "clear, consistent, and convincing."

Employee' Mut. Liab. Ins. Co. of Wisconsin v. Indus. Comm'n, 234 P.2d 901, 903 (Colo. 1951).

Colorado also adopts the putative spouse doctrine, which allows a person to claim the rights of a marital relationship in the absence of a legal marriage. A putative spouse obtains the rights conferred upon a legal spouse, whether or not the marriage is prohibited, when the person has (1) cohabitated with another to whom (2) he or she is not legally married in (3) the good faith belief that he was married to that person (4) until "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111 (2003) (emphasis added). The definition of "prohibited marriage" includes those marriages entered into prior to the dissolution of an earlier marriage of one of the parties. Colo. Rev. Stat. § 14-2-110 (2003). In addition, Program Operations Manual System (POMS) GN 00305.085 clearly states that putative marriage requires continuous good faith belief that the marriage was legal until the worker dies in order to be valid.

Based upon the available facts, after her divorce in April 1987, Ms. S~ could satisfy the elements required for a common law spouse. Common law marriage in Colorado requires cohabitation. See Taylor, 50 P. at 1049; see also Lucero, 747 P.2d at 663. Mr. R~ and Ms. S~ lived together from September 1984 until they separated in January of 1998. Common law marriage also requires "holding out." See id. It also requires a "mutual" and "open" assumption of marital status. See Clayton, 25 P.2d 170. In 1992, Mr. R~ and Ms. S~ filed both State and Federal tax returns jointly. Ms. S~ claimed him as a dependent spouse for health insurance purposes and included coverage for Mr. R~ as her spouse on her life insurance policy. They received a wedding invitation addressed to them as though they were married. These facts evince that Mr. R~ and Ms. S~ were "holding themselves out" to the community as man and wife, and both openly presented themselves as married to each other. Even though Ms. S~ was still married to Donald S~ at the time she began living with Mr. R~, that impediment was removed with finalization of her divorce in April 1987. She and Mr. R~ continued to cohabitate and held themselves out as married until their eventual separation in January of 1998. The evidence of a common law relationship between Mr. R~ and Ms. S~ seems "clear, consistent and convincing." On these facts, Ms. S~ could satisfy the legal requirements as a common law spouse to Mr. R~ under Colorado law.

Ms. K~ cannot satisfy the legal requirements for a common law marriage to Mr. R~ because Mr. R~ and Ms. S~'s relationship had not legally terminated at the time Ms. K~ began living with Mr. R~. She also cannot satisfy the legal requirements of a putative marriage because she lacked a good faith belief that Mr. R~'s prior relationship to Ms. S~ was legally dissolved.

Two common law marriages cannot exist simultaneously. See In re Morrow's Estate, 68 P.2d at 39; see also Crandell, 804 P.2d at 276. Because Mr. R~'s common law marriage to Ms. S~ had not legally terminated when his relationship with Ms. K~ commenced, he and Ms. K~ could not have a common law marriage even though they arguably held themselves out to the community as married.

As previously stated, a putative spouse must (1) live with another person (2) to whom she is not legally married with (3) good faith belief that she is married to the other person (4) until knowledge of the fact that she is not legally married terminates her status. See Colo. Rev. Stat. § 14-2-111. Also, as mentioned in previous memoranda on this topic, to receive benefits a putative spouse in Colorado must have continuous good faith belief in the validity of the marriage until the worker dies. See Memorandum from OGC Region VIII to RC, Putative Common Law Marriage in Colorado, 3 (1985) (Claimant cannot be putative common law spouse if finder of fact determines that she knew of prior undissolved marriage before worker died); see also Memorandum from OGC Region VIII to RC, Putative Marriage, Colorado (1979) (Putative common law marriage did not arise when putative spouse did not meet the good faith belief requirement of the Colorado statute).

Ms. K~ did not meet the required elements and was not Mr. R~'s "common law putative spouse." First, it is true that Mr. R~ and Ms. K~ lived together. Second, if Mr. R~ was legally married to Ms. S~, he could not have been legally married to Ms. K~. It is also true that they may have held themselves out as married because they held some joint accounts; Ms. K~ was named as a beneficiary spouse on Mr. R~'s union pension, and Ms. K~ was included on Mr. R~'s health insurance policy. However, Ms. K~ fails to meet the elements of a putative spouse because she lacked a good faith belief that she was married to Mr. R~ prior to his death. Specifically, in her application for benefits on April 16, 2002, she acknowledged that she was "aware of Mr. R~'s relationship with Ms. S~ and had asked him several times to take legal action to end the marriage." On these facts, Ms. K~ lacked a good faith belief that Mr. R~ was not married to another and therefore could not have been his putative spouse.

We recognize the Adams County District Court issued an order determining that Ms. K~ was Mr. R~'s putative spouse. However, the Commissioner of Social Security is not bound by the decisions of a State court in a proceeding to which she is not a party. But, she is not free to ignore an adjudication of a State trial court where it is fair and consistent with the law as enunciated by the highest court of the State. The Commissioner must accept the determination made by a State court where (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction, (2) the issue is genuinely contested before the State court by parties with opposing interests, (3) the issue falls within the general category of domestic relations law, and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (emphasis added) (citing Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970)); see also Social Security Ruling (SSR) 83-37C (1983). Where the highest court in the State has not spoken on the particular area of law at issue, the Commissioner may follow the decision of the lower court but "is free to disregard that decision if he feels that it is contrary to what the supreme court of that State would rule if presented with the question." Rogers v. Sullivan, 795 F. Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec'y of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967); see also Warren, 868 F.2d at 1447 (stating that the Commissioner is obligated by statute to determine the law as would the highest court of the State in a proceeding contested by parties with opposing interests). A lower court decision should be followed if it is "fair and logical and no authoritative decision to the contrary exists." Id., see also Legory, 424 F.2d at 410.

The Adams County District Court order approving stipulation to spousal status involves the issue of Ms. K~'s relationship to Mr. R~, an issue in her claim for benefits, and the issue was determined by a State court of competent jurisdiction. See Colo. Const. Art. 6 § 9 (stating jurisdiction vests in Colorado District Courts to hear matters regarding probate or domestic relations). Thus, the first requirement of the Gray analysis is satisfied. Ms. K~'s status as a putative spouse also arguably "falls within the general category of domestic relations law," satisfying the third step of the Gray analysis.

However, Ms. K~'s spousal status does not appear to have been "genuinely contested" under the meaning of SSR 83-37c. To be genuinely contested, an issue must be disputed by parties with opposing interests. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (a court order did not bind the Commissioner and was not genuinely contested where no evidence was presented or any material controversy resolved); see also Outwater v. Sec'y of Health & Human Servs., 894 F. Supp. 1114, 1120 (E.D. Mich. 1995) (court found that where transcript from the proceeding failed to show that the issue was discussed that it could not have been "genuinely contested" under Gray); Rogers, 795 F. Supp. at 765 (court stated that a proceeding where a jury found that a party was a common law wife was "genuinely contested"); McEvers v. Sullivan, 785 F. Supp. 1321, 1328 (C.D. Ill. 1992) (finding that a court order declaring a marriage invalid after one of the parties died was not "genuinely contested"); Winters v. Sec'y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323 at * 2 (S.D. Ohio Dec. 11, 1989) (State court proceeding is "genuinely contested" when parties are cross examined and evidence is presented in favor and opposition to positions of the parties); Thomasello v. Apfel, No. 97-3701, 1998 WL 597643 at * 2 (7th Cir. Aug. 28, 1998) (stating that where an order is not the product of truly adversarial proceedings, there is good reason to question it's reliability). In this case, the parties did not litigate, but settled, after which stipulations were entered to approve of the settlement agreement and spousal status. In fact, based upon information obtained from the District Court, both a hearing and trial were scheduled but neither was held. Based upon this information, the court order appears to fail the "genuinely contested" inquiry of Gray and SSR 83-37c.

We note previous opinions from this office that take an alternative view on the "genuinely contested" requirement. In particular, we have stated that "to require a genuine contest may be to require the impossible, and that knowing waiver of the opportunity to contest can compensate for the absence of a contest." See Memorandum from OGC Region VIII to Acting ARC, Child's Status under North Dakota Law, 3 (1990) (quoting Memorandum from OGC Region V to ARC, Programs, Mutual Acknowledgement of Paternity in Michigan, (1985)). Ms. K~ might argue that Ms. S~'s agreement to stipulate as to spousal status shows both notice and waiver of the opportunity to contest. While this argument seems compelling, it still does not make the court order binding on the Commissioner because Ms. K~ cannot satisfy the fourth and final requirement that the finding be consistent with the law as enunciated by the highest court in the State if it were to speak regarding this issue.

Based upon the facts, the finding that Ms. K~ was Mr. R~'s putative spouse would probably not be consistent with a holding of the Colorado Supreme Court if they were to speak on this particular area of law. As discussed above, where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner "is not required to follow a lower court's decision to which she is not a party" but can disregard the decision if she feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. See Rogers, 795 F. Supp. at 764 (quoting Cain, 377 F.2d at 57). There are no reported cases where the Colorado Supreme Court has spoken regarding Colo. Rev. Stat. § 14-2-111 or the elements of putative marriage. But, the statute clearly says that for the person claiming to be a putative spouse, "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111. And, in Williams v. Fireman's Fund Ins. Co., the Colorado Court of Appeals held that a putative spouse keeps the rights of a legal spouse if she does not discover the prior undissolved marriage of her spouse until after his death. 670 P.2d 453, 455 (Colo. App. 1983). Likewise, in People v. McGuire, the Colorado Court of Appeals also held that knowledge of a previous marriage "negates any good faith belief" that might be available to a participant in an invalid marriage. 751 P.2d 1011, 1012 (Colo. App. 1988). Ms. K~ cannot be a putative spouse because she knew of the previous legal marriage of Ms. S~ and Mr. R~ prior to his death, which destroyed her good faith. As such, the Supreme Court of Colorado would probably not find Ms. K~ to have satisfied the good faith requirement of Colo. Rev. Stat. § 14-2-111, and she therefore would not qualify as a putative spouse.

CONCLUSION

Accordingly, we advise that:

(1) Ms. S~ could qualify as Mr. R~'s common law spouse because she and Mr. R~ lived together and held themselves out to the community as married in a "mutual" and "open" assumption of a marital relationship.

(2) Ms. K~ could not qualify as Mr. R~'s putative spouse under Colorado law because she lacked a "good faith belief" that she and Mr. R~ were legally married. Ms. K~ knew of his marital relationship with Ms. S~ and encouraged him to take legal action to dissolve it.

(3) The Commissioner is arguably not bound by the order issued by the Adams County District Court because (a) the issue of Ms. K~'s spousal status does not appear to have been genuinely contested under the meaning of Gray v. Richardson and SSR 83-37c, and (b) based upon the facts, we do not believe the Colorado Supreme Court would find she meets the legal definition of a putative spouse under Colorado law.

Yvette G. K~

Regional Chief Counsel, Region VIII

By:_____________________________

Michael A. T~

Assistant Regional Counsel

_/1 All references to the United States Code (U.S.C.) are to the 2000 edition.

_/2 All references to the Code of Federal Regulations (C.F.R.) are to the 2003 edition.

SYLLABUS

Where claimant and DWE began living together in 1972, claimant was not divorced from her husband until 1976, and may have known that DWE's common-law relationship with another woman was not terminated, claimant cannot claim status as a putative spouse of DWE despite assertions that she was legally married to DWE as result of common-law marriage. Held: Depending on the evaluation of the facts, "Good faith belief" required by Colorado law may not be sufficiently demonstrated. (R~ Gilbert D. -- ~-- RA VIII (C~) to RC, SSA 6/1/79

1. You have requested an opinion concerning whether a putative marriage existed between claimant for mother's benefits, Diane R~ , and Gilbert R~, DWE.

2. The material provided by you, returned herewith, reflects the following: In March 1968, Gilbert R~ and Mary C~ entered into a common-law relationship in which they had one child, Rose M., born September 27, 1970. The parties separated in 1972 according to Mary's application for mother's insurance benefits, although Diane seems to think the separation occurred in 1970. The relationship between Gilbert and Mary was never formally terminated by divorce or annulment proceedings. l_/ Diane was married to Gary S~ in 1970; they later separated in mid-1972 and in November, 1972 Diane began living with Gilbert R~ in what she maintains was a "real marriage." There was no ceremonial marriage. One child Leona was born on October 18, 1974. 2_/ Gary S~ upon returning from military service, obtained a divorce from Diane in April, 1976. Gilbert, the victim of a homicide, died in Colorado on January l, 1977. That Mary C~ R~ was the common-law wife and hence, the legal widow of Gilbert R~ has already been determined according to the file. 3_/ Therefore, you have inquired as to whether a putative marriage existed between Diane and the DWE.

3. Section 216(h)(1)(A) is the applicable provision of the Social Security Act and provides, in pertinent part:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled . . . if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, would find that such applicant and such insured individual were validly married at the time . . . he died. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of interstate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.

4. The pertinent Colorado Statute provides:

Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. Children born of putative spouses are legitimate. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under section 14-2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

Colo. Rev. Stat. 1973 t 14-2-111.

5. The crucial question in the present case seems to be whether Diane demonstrated the required "good faith" belief in the validity of her marriage to Gilbert. We assume for purposes of this opinion that the status of putative spouse could arise in Colorado by virtue of a good faith belief in the legality of a common-law marriage since common-law marriages are recognized as valid in Colorado. Graham v. Graham, 130 Colo. 225, 274 P.2d 605 (1954). A common-law marriage would therefore presumably be a "legal" marriage as that term is used in the putative marriage statute. On this basis, if there were some impediment to the legality of a common-law marriage of which one spouse was unaware, that spouse could have the status of putative spouse if the "good faith" requirement were met. See Sancha v. Arnold, 251 P.2d 67 (Cal. 1952) in which a woman was considered the putative spouse of a man based on her good faith belief that there was a valid common-law marriage. 4_/ Although this is largely a question for your determination, as finder of fact, we will address this issue and point out some of the difficulties we perceive.

6. There are statements by Diane in the file in which she stoutly asserts her belief that she was validly married to Gilbert but there are some inherent contradictions which may be believed to undermine her credibility. 5_/ In a statement of marital relationship completed by Diane on January 25, 1977 (some three weeks after Gilbert's death) she answers some of the questions as follows:

Q.3: Did you have an understanding as to your relationship when you began living together?

A: Yes.

Q: If it was in writing furnish a copy; if it was not in writing what did you say to each other about your living together?

A: Didn't say nothing about living together, we were happy and in love and together raised a child that was born to Diane and Gilbert P~, we both stayed and lived together continuesly (sic).

Q.6: Did you believe that your living together made you legally married?

A: Yes, common-law.

Q.19(b): Did the person with whom you were living ever live with anyone else as husband and wife?

A: Yes. Dates: 69-70; Kind of Relationship: lived together; Name of person: Mary C~; How relationship ended: Couldn't get along; Date and place relationship ended: 1970 Chicago.

Q.8: Was there an agreement or promise that a ceremonial marriage would be performed in the future?

7. Diane's answers to this first questionnaire contrast with later statements made by her 6_/. For example, Diane's answer to question 3 above should be compared to her later assertions that she and Gilbert "made vows to each other" (statement of September 8, 1978):

We knew there was a spiritual relationship but not a legal relationship.

We knew that as soon as Gary came back from Okinawa that m~ prior marriage would be over legally but spiritually the marriage had ended.

Further while Diane, in January 1977, stated, regarding question 8, that there was no promise or agreement regarding a ceremonial marriage in the future, in September 1978, her story was:

Gilbert and I planned to get legally married when Gary returned and my divorce was final.

When the divorce (from Gary) was final, Gilbert and I restated our vows. 7_/ We had planned on getting legally married but felt that the vows were equally as effective at that time. We wanted to postpone the legal marriage until February 1977 when Gilbert was to take a trip to Wisconsin and meet all my family first.

Regarding Gilbert's prior relationship with Mary C~ (Question 19 above) Diane vacillated quite a bit between acknowledging its common law character and denying it.

Gilbert had a common law relationship with someone named Mary (nine months) . . . I felt that Gilbert and Mary's relationship had no validity whatsoever. (September 8, 1978)

I never really considered it to have been common law anyway. I knew the relationship with Mary and Gilbert had ended in 1970 when Gilbert and I first started dating in 1972.

While Diane evidently considered herself the common law spouse of Gilbert, her statements indicate that she denied the status for Mary. Yet, each relationship produced a child without benefit of a formal, or ceremonial, marriage, and in each relationship the woman evidently held herself out as married to Gilbert by using Gilbert's name and telling others they were married and Diane may have known of this. If so, it is difficult to credit good faith to Diane's denial of Mary's common law status or her claim that she believed she was married to Gilbert. Diane has a rather simplistic view of how relationships end:

I feel a bigamous marriage is when someone intensionally (sic) marries two individuals without ever trying to solve the situation. Gary and I intended to take action as well as Gilbert and I. I feel that a marriage ends when two individuals agree the relationship is over and that some action will be initiated in the future to dissolve the relationship.

This raises the question of whether Diane had a good faith belief that Gilbert's relationship with Mary had ended just because they separated.

8. Further, Diane's good faith belief is also questionable as the result of her not claiming Gilbert as the father of her child for purposes of welfare entitlement (statement of 5/19/77) and not claiming Gilbert as her husband so both could receive welfare in Colorado Springs (May 19, 1977). Diane seems to confuse, perhaps intentionally, a concept of spiritual marriage with one of legal marriage. Despite her protestations regarding her belief in the validity of the "marriage," we, subject to your factual determination, are inclined to the view that the requisite good faith showing is not met here. The file seems to reflect no more than that Diane and Gilbert lived together.

9. In a General Counsel memorandum exploring the issue of putative marriage under California law, a copy of which is in your file, the author states:

The courts, reflecting California's strong public policy to discourage nonceremonial marriages, have insisted upon strict proof of good faith before a per- son can qualify as a putative spouse . . . especially where none of the ceremonial formalities of a legally valid marriage has been performed. It is not enough that the party seeking to establish putative spouse status thought the relationship a satisfactory substitute for marriage .... Good faith must "be evidenced by a reasonable basis for the belief that they had complied with the laws of the country in which they assumed the relationship" . . . How is good faith established? Generally, evidenced that the parties cohabited, held themselves out, and were known as husband and wife, is relevant to the issue of whether the claimant merits putative spouse status, but it is not conclusive. Other evidence may show that the claimant lacked the required good faith. See GC Opinion re Isaac F~ D-3895, July 10, 1958. (emphasis added).

Opinion re: Manual R. P ~ , D-16019, ~ , 0GC (F~) to R.Rep. (W~), 4/1/75. The Colorado appellate courts have not as yet construed the putative marriage statute in an actual case. We, however, believe they would take a position similar to that in California and probably would not find a putative marriage in existence between Diane and Gilbert at the time of his death if the facts are judged consistent with the views we have expressed.

10. Accordingly, your inquiry concerning a putative marriage between Diane and Gilbert is answered in the negative if you determine that there was no good faith belief by Diane that she was legally married to Gilbert, for which conclusion we find support in the file.

1_/ Of common-law marriage, it is said that the agreement must be to enter into the full marital relationship, permanent and exclusive of all others:

. . . so that, when consummated by cohabitation, nothing less than a decree of divorce pronounced! by a court of competent jurisdiction can dissolve the relation. (emphasis added).

52 Am. Jur.2d Marriage § 48 (1970). In James v. James, 97 Colo. 413, 50 P.2d 63 (1935), the evidence was held sufficient to justify a decree annulling a marriage on the grounds that the wife at the time of the marriage was the undivorced common-law wife of another man. In Peery v. Peery, 27 Colo. App. 533, 150 P. 329 (1915), the court dismissed a woman's action for divorce and alimony because there was insufficient evidence of a common law marriage; presumably, had a common-law marriage been established, a divorce terminating the marriage would have been granted.

2_/ Whether Gilbert R~ was the father of Leona is not in issue here.

3_/ See SSA 553 dated 9/2/77.

4_/ Diane and Gilbert were not "legally" married since Gilbert was still "married" to Mary and thus incapable of contracting a second valid common-law marriage. Diane, of course, did not have the capacity to be "legally married" prior to April 29, 1976 the effective date of her divorce from Gary S~ It does appear, however, that Diane and Gilbert cohabited between 1972 and the date of his death.

5_/ In her statement of November 4, 1977 Diane states:

It is my belief that a real marriage existed between myself and Gilbert R~ from the point that we first began to live together 11/72. I was still legally married to Gary S~ He obtained a divorce effective 1975. In spite of the fact that I was still legally married to another individual it was my belief that a valid common-law marriage existed between Gilbert and myself since '72 its inception. I maintained this belief until our marriage ended with his death. (emphasis added).

6_/ Regarding Diane's interview and statement of December 19, 1977, the interviewer noted:

In her later interviews she has been accompanied by a male friend who does a lot of coaching. Several times the interviewer has had to advise him that Diane was being interviewed and not him. She has changed her statements to the interviewer and when question why she stated that she was confused and didn't understand something.

7_/ This story changed too, (see interviewer's notes of December 19, 1977, SSA Form 5002.)

Under law of Colorado, a putative marriage may be established if the wage earner died after January l, 1974, where claimant cohabited with wage earner from the time of their marriage to wage earner's death in the good faith belief that they were legally married, although wage earner was not divorced from his first wife. (L~, HUBERT F., DWE - ~ RA VIII (C~) to RC, SSA, 5/11/79)

1. The above-referenced memorandum requests an opinion whether Darlene L~ is the putative spouse of Hubert F. ~, DWE.

2. From the materials you provided, returned herewith, it appears that Hubert L~ lived in Texas between 1959 and 1963 under the name of Larry W~ and that he obtained a separate social security number using that name. l_/ Hubert married Marjorie O~ in 1959 and they separated in late 1963. Three children were born of this marriage. A search of divorce records in Texas and New Mexico failed to uncover a decree terminating the marriage of Hubert (Larry) and Marjorie. It is also known that Hubert married a Mary A. P~ in December 1968. Mary A. obtained a divorce from Hubert in the Denver, Colorado District Court on April 13, 1971. Hubert then married Darlene R~ 2_/ on September 23, 1976. He died in Denver some ten months later on July 13, 1977.

3. Darlene's application for mother's benefits indicates her knowledge of Hubert's marriage to and divorce from Mary A. P~ . There is no mention by Darlene of Hubert's prior marriage to Marjorie O~ which would lead to the conclusion that Darlene was unaware of it. Darlene has stated:

When I married Hubert L~ I thought it was a valid marriage. Hubert L~ show (sic) me the attached divorce papers. 3_/

4. The question which you have posed is: Can a putative marriage between Hubert and Darlene be established? We do not reach here the issue of the presumption of validity which normally attaches to the last in a series of marriages, nor what evidence (e.g. lack of divorce decree from an earlier marriage) is sufficient to rebut the presumption.

5. As you know from our prior opinions, there is a Colorado statute which sets forth the requirements for finding a putative marriage. It provides:

Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. Children born of putative spouses are legitimate. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under section 14-2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

Colo. Rev. Stat. 1973! § 14-2-111. As we stated in Opinion Re: Putative Marriage-Arethusa F.F~, E-010, ~--DWE, RA VIII (C~) to RC, SS, 2/9/79, 0D 0230:

The above-quoted Colorado statute requires that the person claiming a putative marriage must have had a good faith belief that he was legally married to his or her "spouse" and that the status of putative spouse terminates when he or she has knowledge that he or she is not legally married. It also requires that the parties have cohabited during this time.

6. Based on a review of your file, it seems reasonable to read Darlene's statement as indicative of a good faith belief in the existence of a valid marriage between herself and Hubert. Her application reflects that she knew of Hubert's prior marriage to and divorce from Mary A. P~ There is no indication in the material you provided that Darlene acquired knowledge prior to Hubert's death that they were not legally married. Her belief that the marriage was valid may have been strengthened by her having seen Hubert's divorce papers from Mary A. It also appears that Darlene herself was free to marry by virtue of her earlier divorce from R~ , and that she and Hubert cohabited until his death.

7. Accordingly, the District Office's determination that Darlene is the putative spouse of Hubert is legally justifiable.

l_/ Hubert's double identity has been attested to in the affidavit of Juanita H~ sister of Marjorie O~

On or about 1967 I learned that Mr. W~ had left my sister and their minor children without any expressed intent of returning.

On or about 1973 I moved to Denver, Colorado. After taking up residence there I met by coincidence the man whom I had formerly known as Larry W~, the husband of my aforesaid sister. However, then and thereafter (sic) referred to himself as Hubert L~ although he admitted that he use to live with my sister as her husband.

In conclusion, I say that the man whom I knew as Larry W~ and the husband of my sister in Forth Worth, Texas later identified himself as Hubert L~

Further, development of the double identity issue is documented on undated SSA Form 5002 submitted by the Fort Worth D.O.

2_/ You have furnished to us a copy of the divorce decree terminating the marriage of Darlene to Olie J. R~ on October 2, 1968.

3_/ i.e., the papers ending the marriage of Hubert and Mary A. P~.

Where DWE was not divorced from first wife at time of marriage to second wife, claimant, and claimant only learned of DWE's prior undissolved marriage upon death of DWE, claimant may be putative spouse of DWE under Colorado law, for purposes of eligibility under section 216(h)(1)(i) of the Social Security Act, if it is found that claimant had requisite good faith belief she was legally married. (Putative Marriage - Colorado - Robert G. M~, SSN ~ RA VIII (C~) to RC, SSA, 4/24/79, 0D 0320)

1. The subject memorandum requests a legal opinion regarding whether or not a putative marriage existed between Robert and Gloria M~ , and whether Gloria may thereby be considered the putative spouse of Robert, the deceased.

2. Robert had married Manuelita in 1949 and at the time of his death in Colorado on September 24, 1977 l_/ they were not divorced although a petition for legal separation was evidently filed in the District Court of La Plata County on January 15, 1976. In April 1976, Robert began receiving disability insurance benefits 2_/ as did Manuelita and their son, Robert A. M~ . Benefit amounts for Manuelita and Robert A., were, however, reduced, effective May, 1977, to accommodate the entitlement to benefits of Nina N~ as the deemed dependent stepchild of Robert M~ . In January of 1977, Manuelita informed the SSA that she and Robert were not divorced. Robert was contacted by telephone at the V.A. Hospital in Denver in February 1977, and admitted the same. After Robert's death, Manuelita applied for a lump-sum death payment and furnished a receipt showing that she had paid $120 of the $1893 in burial expenses.

3. From the material you provided, returned herewith, it appears that Gloria's marriage to Celestino N~ ended in divorce in 1963. Robert and Gloria were ceremonially married in Denver on February 11, 1976, and cohabited until Robert's death. Gloria filed for wife's and child's insurance benefits on Robert's account on May 18, 1977. According to Gloria's statement, dated November 13, 1978, she first learned that Robert was still married to Manuelita when he died: 4_/

He never told me that he was still married to someone else. In fact he always told me that he had been divorced and had papers (divorce) which appeared that he was divorced. When he died I was shocked to learn that the divorce had never been finalized and that he still had a wife elsewhere. I really believe that m~ husband thought that he was divorced from his first wife. J. C. P~ , my lawyer discovered that the divorce had never been finalized after my husband died. All the doctors knew I was his wife and called me when he got real sick before he died.

4. Section 216(h)(1)(A) of the Social Security Act provides:

An applicant is the wife, husband, widow or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, of such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died

The Colorado statute provides:

Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. Children born of putative spouses are legitimate. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under section 2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

Colo. Rev. stat. 1973 § 14-2-ill.

5. As we have noted in prior opinions, 5_/ under Colorado law, a putative spouse of a wage earner who died after December 31, 1973, would have the status of widower or widow of the wage earner for the purposes of title II of the Social Security Act. The above quoted Colorado statute requires that the person claiming a putative marriage must have had a good faith belief that she was legally married to her "spouse" and that the status of putative spouse terminates when she has knowledge that she is not legally married. It also requires that the parties have cohabited during this time. It is undisputed that Robert and Gloria cohabited without separation during their marriage. Whether Gloria had the requisite good faith is largely a question of fact and therefore a matter for your determination. While Robert knew that he was not divorced from Manuelita, there is no indication in the file that Gloria acquired knowledge prior to Robert's death which would make her doubt the validity of her marriage.

6. Should you determine that Gloria had a good faith belief that she was legally married to Robert at the time of his death including that she did not acquire knowledge prior to his death indicating that he was not divorced, it is our opinion that for purposes of application of the Colorado Statute, Gloria was the putative spouse of Robert and that she accordingly could be considered a "widow" of Robert for the purpose of determining her eligibility under section 216(h)(1)(i) of the Social Security Act.

1_/ In a "request for Evidence or Assistance" dated October 27, 1978, a claims representative erroneously put the date of Robert's death at May, 1977 and stated:

Since the N.H. knew he was married and that his wife and child were receiving benefits on his account, it seems probable that Gloria also knew it, particularly since she did not file until after his death.

However, Gloria filed for benefits (wife and child's') in May 1977, four months before Robert died.

2_/ Robert stated in his application for disability insurance benefits dated February 2, 1976 (nine days before his marriage to Gloria) that he was married to Manuelita and that they were "separated and . . . on the verge of divorce."

3_/ Gloria did not appear nor was she represented by counsel in the Arizona divorce proceedings. Nina N~ was born September 30, 1963. The divorce decree of Celestino and Gloria is dated October 18, 1963, and recites that a child was born in March 1962, and "given out for adoption." There is no mention of Nina N~ in the divorce decree.

4_/ No details of this revelation are provided.

5_/ Opinion, re: SS, Putative marriage, Colorado, June 24, 1976, OD 0020; Opinion, re: SS, Joseph C. M~ , D-16930, March 15, 1978, OD 0320; Opinion re: SS, Putative marriage, Colorado Arethusa F~ , E-010, February 9, 1979, OD 0320.

Under law of Colorado, a putative marriage may be established if wage earner died after January l, 1974, where claimant cohabited with wage earner from the time of the alleged marriage to wage earner's death in the good faith belief that they were legally married.

1. The subject memorandum inquires whether a putative marriage existed between the deceased, Arethusa, and the applicant for disabled widower's benefits, Edgar F~ who lived in Colorado at the time his application was filed.

2. From the material you provided, returned herewith 1_/ it appears that Edgar and Arethusa went to Mexico for one day from California where they were then residing and consulted a lawyer who arranged Arethusa's divorce from Patrick R~ and her marriage to Edgar in February, 1951. The marriage may have been accomplished by a power of attorney given the lawyer, but the applicant is not sure. Neither Edgar nor Arethusa was present in Mexico at the time of their alleged marriage, evidence of which is a translated marriage certificate dated March 8, 1951. An undated letter from the Mexican lawyer to Arethusa stated that divorce papers would be sent to her as soon as the lawyer received payment for his services. The applicant was unable to locate a decree of divorce between Arethusa and Patrick R~, but he met R~ and was introduced to R~ wife some years later. The applicant has stated that no one ever questioned the legality of the Mexican divorce and subsequent marriage, and that he and Arethusa lived together as man and wife until she died. They had two children.

3. Section 216(h)(1)(A) of the Social Security Act provides:

"An applicant is the wife, husband, widow or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died . . .

The Colorado statute provides:

Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. Children born of putative spouses are legitimate. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under section 14-2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

Colo. Rev. Stat. 1973 § 14-2-111.

4. We have found no Colorado case law interpreting the statute just quoted. As we noted in earlier opinions:

In the absence of a court decision interpreting the new law, and we are aware of none, it would appear that where the wage earner died prior to January 1, 1974, the effective date of the above-quoted law, a survivor could not successfully claim the status of putative widower or widow because it would be necessary to give the above-quoted statute retroactive effect for a court to find that a person claiming as a putative spouse of a wage earner who died prior to January 1, 1974, had the status of spouse based on a putative marriage. Laws are to be construed prospectively rather than retrospectively (quoting excerpts from constitutional, statutory, and decisional law.) Our opinion, re: SS, Putative Marriage, Colorado, June 24, 1976, D-16442, OD 0020, cited in our opinion, re: SS, Joseph C. M~ , March 15, 1978, OD 0320.

The June 24, 1976 opinion held that a putative spouse under Colorado law would not have to establish a right to participate as a spouse in the devolution of the intestate personality of the wage earner 2_/ dying after December 31, 1973, 3_/ and further stated:

Accordingly, it would appear that under the law of Colorado, a putative spouse of a wage earner who died after December 31, 1973, would have the status of widower or widow of the wage earner for the purposes of Title II of the Social Security Act.

The above quoted Colorado statute requires that the person claiming a putative marriage must have had a good faith belief that he was legally married to his or her "spouse" and that the status of putative spouse terminates when he or she has knowledge that he or she is not legally married. It also requires that the parties have cohabitated during this time. It seems reasonable to read the statements submitted by Edgar (e.g. "I believe that the Mexican divorce and marriage are legal." "I was brought up to believe that you don't have children out of wedlock and we have two children.") as indicative of a good faith belief in the existence of a valid marriage. There is no indication in the material which you provided that Edgar acquired knowledge prior to Arethusa's death that they were not legally married. Having met Patrick R~ wife evidently confirmed his existing belief that Patrick and Arethusa were legally divorced.

5. Assuming that Edgar and Arethusa were not "legally married", a question which we do not reach here and that you determine Edgar had a good faith belief that he was married to Arethusa at the time of her death, that they had cohabitated when he had such belief 4_/ and that she died in Colorado subsequent to December 31, 1973, it is our opinion that for the purposes of application of the Colorado statute, Edgar was the putative spouse of Arethusa and that he, thus, should be considered a "widower" of Arethusa for the purpose of determining his eligibility under Section 2i6(h) (1) (A) of the Social Security Act.

1_/ Selected documents from the applicant s disability file

2_/ Pursuant to Section 216(h)(1)(A) of the Social Security Act.

3_/ In a later opinion, it was concluded that the statute does confer inheritance rights on a putative spouse although the statute is not explicit in this regard. SS, Thomas C. H~ --Putative Marriage,--Colorado, April 17, 1978, OD 0320; see also Aubrey v. Folsom, 151 F.Supp. 836 (N.D. Cal. 1957); Annot. 81 ALR3d 28.

4_/ A January 3, 1979 statement by the applicant, which you provided includes, "Arethusa and I lived together as man and wife from the date of our marriage to her death."