TN 4 (04-13)
PR 01705.048 Texas
A. PR 13-053 Texas State Law – Questionable Date of Texas Common Law Marriage (NH Luis , SSN ~) - REPLY
DATE: March 4, 2013
Entitlement to disabled adult child (DAC) benefits may exist if at the time of the application the child is, among other requirements, unmarried. To determine whether entitlement to DAC benefits exists in this case, we must determine whether the claimant was married at the time of application for benefits in 1997 or later. The claimant did not enter into a formal ceremonial marriage; however, Texas law provides that a man and woman may prove the validity of a common-law marriage either by filing a properly executed Declaration and Registration of an Informal Marriage or by showing the following: an agreement to be married, cohabitation in Texas as husband and wife, and proof of representation to others that they are married. In this case, no Declaration of Informal Marriage exists, but sufficient documentation establishes that the three elements of the claimant's common-law marriage existed no later than the date of filing for SSI benefits on the claimant's behalf on September 9, 1994.
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.
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.
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.
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~.
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.
Regional Chief Counsel
Martin W. Long
Assistant Regional Counsel