QUESTION PRESENTED
               You asked us if a Texas common law marriage existed between Julio (C1), number holder
                  Luis’s (NH) son, and S~ , and if so, what is the effective date of such common law
                  marriage, in order to determine C1’s entitlement to Title II disabled adult child’s
                  benefits (DAC). You also asked if any additional documentation is required to establish
                  a valid Texas common law marriage or the actual date of marriage.
               
               ANSWER
               Based on the present record and specific circumstances of this case, we believe that
                  under Texas law a common law marriage existed between C1 and S~ , with an effective
                  date of September 9, 1994. No additional documentation is required. 
               
               BACKGROUND
               According to the information that you provided, C1 is the child of the NH. The NH
                  has been receiving Title II disability benefits with a date of entitlement of April
                  1994. Based upon a September 9, 1994, application, C1 began receiving SSI disability
                  benefits. In the SSI application for benefits, C1 reported that he was married to
                  S~, with a marriage date of August 1, 1994. In 1997, S~ filed an application for DAC
                  on C1’s behalf. S~ answered “yes” to the question of whether C1 and she had been living
                  together at any time since July 31, 1996, and she reported a marriage date of August
                  1, 1994.  The Social Security Administration (the agency) approved the DAC application
                  filed on C1’s behalf, with a date of entitlement of September 1994. In a May 1997
                  Representative Payee application, S~ reported that she was C1’s girlfriend, and that
                  they were living together.
               
               S~ reported in a November 6, 2002, “Statement for Determining Continuing Eligibility
                  for Supplemental Security Income Payments” that she was married to C1 and she listed
                  herself as C1’s spouse. As one of C1’s resources, S~ also listed a savings account,
                  which S~ “co-owned.” S~ further reported that C1 had been residing at Yancey, TX since
                  August 1, 1996, and that the household consisted of C1, herself, and four children. In
                  a subsequent “Amendments to Statement for Continuing Eligibility” dated November 27,
                  2002, S~ listed herself as C1’s spouse. Further, S~ reported in a January 22, 2005,
                  “Statement for Determining Continuing Eligibility for Supplemental Security Income
                  Payments” that she was C1’s spouse, that C1’s address was Yancey, TX, and that the
                  household consisted of C1, herself, and four children. S~ reported that the Yancey
                  address was property her father owned. The Agency terminated C1’s SSI benefit in July
                  2009 due to S~’s ineligible spouse income. An “ineligible spouse” is an SSI eligible
                  individual’s husband or wife who does not meet all of the criteria for SSI eligibility,
                  but whose income may be deemed to the eligible spouse when determining the monthly
                  SSI benefit amount. 20 C.F.R. § 416.1160. 
               
                In August 2010, A~, C1’s step-daughter, filed another application for SSI benefits
                  on C1’s behalf, in which she reported that C1 was married to S~, but they were separated.
               
               On May 6, 2011, S~ and C1 filed a joint “Petition for Divorce” in the County Court
                  of Law (County Court), Medina County, Texas.  In that petition, the parties represented
                  that they were married “on or about July 20, 2006,” in Pearsall, Texas, The agency
                  made contact with the Pearsall Texas County Clerk’s office, which reported that there
                  was no record of a marriage certificate issued for C1 and S~. and ceased living together
                  as husband and wife on or about July 5, 2010. The petition also lists three children
                  of the marriage: Corina , date of birth (DOB) July; Jennifer, DOB March; and Kayla,
                  DOB September. The County Court issued a “Final Decree of Divorce” on May 3, 2012,
                  but the court made no finding with regard to the effective date of the common law
                  marriage.  Social Security Ruling (SSR) 83-37c, in accordance with the Sixth Circuit’s
                  holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), provides that the Commissioner should accept the
                  determination of a State court when the following prerequisites exist: (1) An issue
                  in a claim for social security benefits previously has been determined by a State
                  court of competent jurisdiction; (2) this issue was 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 SSR 83-37c, 1983 WL 31272 at *3.  However, SSR 83-37c is inapplicable to the current
                  case because there was no determination by the County Court at Law of Medina County
                  as to the effective date of the marriage between C1 and .  There was simply an allegation
                  made in the Petition for Divorce of an effective date of the marriage of July 20,
                  2006. The Court, however, made no finding as to the effective date of the marriage. Therefore,
                  there was no determination of the effective date of the marriage between C1 and by
                  a court of competent jurisdiction. Additionally, as SSR 83-37c and G~ require, the issue of the effective date of the marriage between C1 and was not genuinely
                  contested before the court by parties with opposing interests.  The Final Decree of
                  Divorce issued by the County Court at Law of Medina County was a default judgment
                  entered without C1 appearing. See Hock v. Salaices, 982 S.W.2d 591, 593 (Tex.App. - San Antonio 1998) (default judgments are designed
                  to promote efficiency in disposing of cases where the defendant shows  no interest
                  in the adjudication of the cause, either by failing to answer a lawsuit or appear
                  for trial on the merits in the cause)  Therefore, the prerequisites for the Commissioner
                  to accept a determination of a State court regarding a matter of domestic relations
                  law do not exist in this case.  That same day, the Medina County Clerk’s office issued
                  an “Order/Notice to Withhold Income for Child Support,” which the agency processed
                  in June 2012.
               
               The evidence presented shows that C1 and S~ did not enter into a formal ceremonial
                  marriage, and they did not execute a Texas Declaration of Informal Marriage.
               
               DISCUSSION
               Section 202(d) of the Social Security Act provides that a child over the age of eighteen
                  may collect DAC benefits on the work record of a living parent if at the time of application
                  the child is (1) under age 18, or a full-time elementary or secondary school student
                  under age 19, or under a disability that began before age 22, (2) dependent on the
                  insured, and (3) is unmarried. 42 U.S.C. § 402(d)(1)(B), (C)(i). In this case, at
                  the time of the filing of the application for DAC on C1’s behalf in 1997, C1 was over
                  the age of eighteen, but he had been determined to be disabled prior to age 22 based
                  upon a September 1994 application for SSI. C1 was also was dependent on the NH as
                  the NH’s natural child. See 20 C.F.R. §§ 404.350(a), 404.361(a). Therefore, the question of C1’s entitlement
                  and/or continuing entitlement to DAC benefits turns on whether he was at the time
                  of application in 1997, or anytime thereafter, married to S~.
               
               Under the Social Security Act, the validity of a marriage is determined by the laws
                  of the state where the applicant maintained a permanent home at the time of application
                  for benefits.
               
                “Permanent home means the true and fixed home (legal domicile) of a person. It is
                  the place to which a person intends to return whenever he or she is absent.” 20 C.F.R.
                  § 404.303.
               
                See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344; 404.345.  In this case, we look to Texas
                  law to determine if there was a valid common law marriage between C1 and , and, if
                  so, what is the effective date of such marriage, because C1 maintained his permanent
                  home in Texas at the time of the 1997 application for DAC. See id. 
               
               Texas statutory law provides that a man and woman may prove a valid common law marriage
                  through evidence of a properly executed Declaration and Registration of Informal Marriage,
                  or by showing (1) an agreement to be married, (2) cohabitation in Texas as husband
                  and wife, and (3) proof of representation to others that they are married. Tex. Fam.
                  Code Ann. § 2.401(a). The party seeking to prove the existence of a common law marriage
                  holds the burden of proof by a preponderance of the evidence, which Texas law defines
                  as “the greater weight and degree of credible evidence.” See Tompkins v. State, 774 S.W.2d 195, 207 (Tex.Crim.App. 1987); R & R Contractors v. Torres, 88 S.W.3d 685, 695, n.12 (Tex.App. - Corpus Christi 2002).  A properly executed
                  Declaration and Registration of Informal Marriage affirms the elements of a common
                  law marriage and is prima facie evidence of the marriage of the parties. Tex. Fam.
                  Code Ann.
               
               § 2.404(d). The information provided demonstrates that C1 and S~ never executed a
                  Declaration of Informal Marriage. Because no Declaration of Informal Marriage exists,
                  we must determine if by a preponderance of the evidence a common law marriage is established
                  between C1 and S~, and if so, what is the effective date of the marriage. 
               
               Texas law establishes that the elements of a common law marriage—an agreement to be
                  married, marital cohabitation in Texas, and representation of the marital relationship
                  to others—are determined on a case-by-case basis. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981).  The first element, an agreement to be married,
                  may be shown through circumstantial evidence of cohabitation and representations to
                  others. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex.App. – Houston 1998, pet. denied) (“Proof of cohabitation
                  and representations to others may constitute circumstantial evidence of an agreement
                  to be married.”).  To establish the second element, cohabitation, section 2.401(a)(2)
                  of the Texas Family Code requires that the couple “live together in [Texas] as husband
                  and wife,” and courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex.App. – Houston 2011, pet. denied) (“[c]ohabitation need
                  not be continuous for a couple to enter into a common-law marriage”); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App. – San Antonio 1987, pet. denied) (sufficient cohabitation
                  where husband visited from Nigeria infrequently). And, the third element, representation
                  of the marriage to others, is shown through the “conduct and actions of the parties.” Eris v. Phares, 39 S.W.3d 708, 715 (Tex.App. – Houston 2001, pet. denied).  A common law marriage
                  does not exist until the concurrence of all three elements. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App. – Houston 1991). 
               
               In this case, the greater weight of evidence establishes a common law marriage between
                  C1 and S~, with an effective date of September 9, 1994.  Specifically, Texas law would
                  find that adequate marital representation and cohabitation began on that date, and
                  that the parties’ marital representations and cohabitation evidenced a valid agreement
                  to be married. 
               
               As noted above, the evidence presented demonstrates that C1 began receiving SSI benefits
                  based upon an application filed on September 9, 1994. In that application, C1’s mother
                  reported that C1 was married to S~, and the marriage date was reported to be August
                  1, 1994. The application for SSI filed on September 9, 1994, is, from the evidence
                  presented to us, the first instance that C1 and represented to others that they were
                  married. In 1997, S~ subsequently filed an application for DAC on C1’s, and she answered
                  “yes” to the question of whether C1 and she had lived together at any time since July
                  31, 1996. S~ also reported a marriage date of August 1, 1994. The 1994 SSI and 1997
                  DAC applications are proof that C1 and S~ represented to others that they were married,
                  and that they were cohabitating together, which establishes an agreement to be married. See Lee v. Lee, 981 S.W.2d at 906 (the first element of a common law marriage, an agreement to be
                  married, may be shown through circumstantial evidence of cohabitation and representation
                  to others).  Thus, the concurrence of all three elements of a common law marriage
                  existed no later than the filing of the application for SSI benefits on C1’s behalf
                  on September 9, 1994.
               
               Further evidence demonstrates that until July 2010, C1 and S~ continued to cohabitate
                  together and represented themselves as husband and wife. In November 2002 and January
                  2007 statements to the agency, S~ reported that C1 was married to her, listed herself
                  as C1’s spouse, and reported they were residing together with four children in the
                  same household. S~ further listed herself as C1’s spouse in a November 27, 2002 statement;
                  reported in November 2002 that she co-owned a savings account with C1; and reported
                  in January 2005 that they were residing on property her father owned.
               
               In a subsequent application for SSI benefits filed in August 2010 on C1’s behalf,
                  A~, C1’s step-daughter, reported that C1 was married to S~, but they were separated
                  in July 2010.  A~ also reported in August 2012 that C1 and had been together for fifteen
                  years, from 1996 to 2010. Finally, C1 and S~ filed a joint petition for divorce in
                  Medina County, Texas on May 6, 2011, reporting that their marriage produced three
                  children, with birth dates of July 20, 1996, March 12, 1998, and September 17, 1999. 
               
               Although the petition for divorce lists a marriage date of July 20, 2006, the representations
                  of C1 and S~ in prior applications filed with the agency establish an earlier marriage
                  date.  The fact that C1 and S~ represented to the agency that they were married, resided
                  together for a period of at least fifteen years, co-owned resources, and eventually
                  obtained a Decree of Divorce, which pronounced that their marriage was dissolved,
                  demonstrates convincingly that they had an agreement to be married. Such evidence,
                  as well as evidence showing that the marriage produced three children and that they
                  resided on property ’s father owned, demonstrates that C1 and S~ cohabitated together. Finally,
                  the evidence presented clearly demonstrates that C1 and S~ represented to others since
                  at least September 9, 1994, the filing date of C1’s first application for SSI, that
                  they were married. Applications for SSI filed on September 9, 1994 and for DAC filed
                  in 1997, state that C1 was married to S~. S~ filed the application for DAC in 1997
                  on C1’s behalf, submitted statements to the Agency that she was married to C1, and
                  reported herself to be C1’s spouse. Additionally, in their May 6, 2011, petition for
                  divorce, C1 and S~ represented that they had been married. Texas courts have found
                  similar actions to be sufficient evidence of representation of marriage to others. See Persons v. Persons, 666 S.W.2d 560, 563 (Tex. App. 1984) (signed statements in a credit application
                  which, if false, would expose applicants to criminal penalties); Estate of Claveria, 615 S.W.2d at 167 (notarized and acknowledged deed that was filed in the public
                  records). Accordingly, we believe that the preponderance of the evidence establishes
                  a common law marriage between C1 and S~, and that the effective date of the common
                  law marriage is September 9, 1994, the date that C1’s first application for SSI represented
                  that he was married to S~. 
               
               CONCLUSION
               Based upon the specific circumstances presented, we believe that under Texas law,
                  there existed a common law marriage between C1 and S~, and that September 9, 1994,
                  is the effective date of the common law marriage. 
               
               Michael McGaughran
               Regional Chief Counsel
                By:________________                       
                Martin W. Long
               Assistant Regional Counsel