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