BASIC (07-06)

PR 02720.012 Georgia

A. PR 11-059 Legal Name Change in Georgia Based on a Divorce Decree Dissolving a Purported Common-Law Marriage and Other Evidence

DATE: February 8, 2011

1. SYLLABUS

In this case, the divorce decree and other evidence do not establish a common-law marriage between the number holder and her putative spouse and, therefore, would not justify a change to the number holder's name based on a common-law marriage.

2. OPINION

QUESTION

You have asked whether the Social Security Administration (SSA) may change the number holder's last name in her Numident based on a divorce decree dissolving a purported common-law marriage and other evidence.

OPINION

We do not believe the divorce decree and other evidence in this case establish a common-law marriage between the number holder and her putative spouse and, therefore, would not justify a change the number holder's name based on a common-law marriage. On the other hand, the issue of whether the divorce decree itself provides a sufficient basis for SSA to change the number holder's last name in her Numident depends on SSA's interpretation of an existing Program Operations Manual System (POMS) provision. Since, this second issue turns on a policy, rather than a legal question, we return the matter for resolution by your staff.

BACKGROUND

According to the information we received, Diana R. R~, the number holder (NH), asked SSA to change her name in its records to Diana R. G~. NH requests the name change based on her relationship with an individual she describes as her ex-spouse, Charlie V. G~, Jr. (G~). NH did not provide evidence of her marriage G~, but presented a Final Judgment and Decree of their divorce obtained in the Superior Court, for the County of Meriwether, Georgia, on January 7, 2003. The divorce decree granted NH and G~ a total divorce and dissolved the “marriage contract” entered into between NH and G~, but the decree does not indicate when the purported marriage began or the basis of the purported marriage. The divorce decree indicates NH and G~ had two children, Justin T. G~ and Chelsea R. G~, born in 1990 and 1991, respectively. The divorce decree also awarded NH custody of the children and ordered G~ to provide child support upon his release from prison. SSA records also show G~ as the father of the children. NH also submitted medical records with the name Diane R. G~ as the patient.

DISCUSSION

Social Security regulations provide that a number holder may request that SSA change his or her records, including his or her name. See 20 C.F.R. §§ 401.65, 422.110 (2011). The number holder must present sufficient evidence to justify a change in his or her records. See 20 C.F.R. §§ 422.107, 422.110 (2011). POMS RM 10212.010 lists events that justify a name change, including marriage, divorce, and a court order for a name change. POMS RM 10212.065 describes the evidence required to process a name change based on divorce: “A divorce decree, annulment decree or evidence of dissolution stating the new name (i.e., to be shown on the SSN card) is acceptable evidence of the new name. If a new name is stated in the document, this is the new name that must be used on the SSN.”

NH presented to SSA a Final Judgment and Decree of divorce between her and G~ obtained in the Superior Court, for the County of Meriwether, Georgia, on January 7, 2003. The divorce decree is styled “Diana R. G~” as “Plaintiff” and Charlie V. G~, Jr. as “Defendant.” One could read POMS RM 10212.065 to permit a name change in this case, because there is a divorce decree that states the name NH is asking SSA to use. POMS RM 10212.065 does not explicitly limit the types of name changes permitted on the basis of a divorce decree. On the other hand, one might understand SSA intended, with POMS RM 10212.065, to permit a divorcing spouse to assume his or her maiden name when the divorce document specifies that name. The example provided in the POMS suggests such an interpretation. See POMS RM 10212.065.D. Whether the divorce decree in this case would allow SSA to change NH’s name to her “married” name of G~ turns on SSA’s reading of POMS RM 10212.065 rather than any interpretation of State law. Therefore, we leave to you and your Agency policy contacts the issue of whether POMS RM 10212.065 is intended to permit a name change of the sort contemplated here.

If SSA decides the divorce decree, alone, is not acceptable evidence for a name change under POMS RM 10212.065, POMS RM 10212.010 also lists marriage as an event that may be the basis for a name change. NH did not provide a marriage certificate or evidence that she formally married G~, but she claims she was in a common-law marriage with G~. POMS RM 10212.030 instructs field offices first to determine if a precedent legal opinion addresses “whether the US common-law marriage document submitted is acceptable evidence of a name change event for the State where the marriage was legalized.” If the POMS does not contain a relevant prior precedent legal opinion, the “RO should request a legal opinion from the Regional Chief Counsel on whether the common law marriage document is acceptable evidence for a name change.”

On May 25, 2006, our office issued a legal opinion addressing the issue of whether Georgia law allows an individual to make a legal name change based on a common law marriage. See POMS PR 02720.012 (effective Mar. 31, 2008). There, the number holder asked SSA to change her last name in its records to that of an individual she described as her deceased husband. The opinion observed that Georgia law provides that an individual may change his or her name by means of a marriage license or by filing a petition in superior court; however, Georgia law was silent on whether an individual can change his or her name based on a common-law marriage. The opinion relied on opinions from Georgia's Office of the Attorney General stating that a married woman adopted her husband's surname by operation of law or usage. See id. The opinion concluded that because Georgia law provides that a valid common-law marriage entered into before January 1, 1997, is a legal marriage under Georgia law, one can infer that Georgia would accept a common-law marriage as a basis for a name change. See id.

Thus, if NH was in a common law marriage with G~ before January 1, 1997, we believe Georgia would accept their common law marriage as a basis for NH changing her legal name. “A common-law marriage is one considered valid under certain State laws even though there is no formal marriage ceremony.” 20 C.F.R. § 404.726(a) (2011); see POMS GN 00305.060.A.1. Generally, a common law marriage must be contracted in a State where common-law marriages are recognized. See POMS GN 00305.060.A.1. A common law marriage is a marriage between two persons who intend to marry, consider themselves husband and wife, and are legally capable of entering into a valid marriage. Id. In some States, the parties must cohabit and hold themselves out to the public as husband and wife. Id. Preferred evidence of a common law marriage is: (1) if both the husband and wife are alive, their signed statements and those of two blood relatives; (2) if either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives; or (3) if both the husband and wife are dead, the signed statements of one blood relative of each. See 20 C.F.R. § 404.726(b); see POMS GN 00305.065. If a party cannot provide preferred evidence of a common law marriage, he or she must explain why and provide other convincing evidence of the marriage. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.

Georgia does not recognize common-law marriages entered into on or after January 1, 1997, but does recognize otherwise valid common-law marriages entered into prior to January 1, 1997. See Ga. Code Ann. § 19-3-1.1 (2010); In re Estate of S~, 679 S.E.2d 760, 761 (Ga. Ct. App. 2009). To establish a common law marriage in Georgia, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. See Ga. Code Ann. § 19-3-1 (2010); In re Estate of S~, 679 S.E.2d at 761; In re Estate of L~, 618 S.E.2d 97, 100 (Ga. Ct. App. 2005). All three elements must be met simultaneously, and the relationship cannot be partial or periodic. See In re Estate of S~, 679 S.E.2d at 761; In re Estate of L~, 618 S.E.2d at 100-02. The party asserting a common-law marriage has the burden of proving that a common-law marriage existed by a preponderance of the evidence. See In re Estate of S~, 679 S.E.2d at 761. Evidence tending to show the existence of a common law marriage may include the parties living together as man and wife, holding themselves out to the world as man and wife, and other facts that usually indicate marriage. See In re Estate of L~, 618 S.E.2d at 101. The use of a purported spouse's name may provide evidence of a common law marriage, but failure to do so does not necessarily undermine other evidence establishing a common law marriage. See Beals v. Beals, 416 S.E.2d 301, 302-03 (Ga. Ct. App. 1992) (woman adjudged to be common law wife referred to herself by common law husband's name, maintained joint checking account, signed contracts together, but used maiden name when filing tax returns and applying for aid).

We do not believe the evidence provided is sufficient to establish that NH and G~ entered into a common-law marriage on or before January 1, 1997. See In re Estate of L~, 618 S.E.2d at 100-01; Beals, 416 S.E.2d at 302-03. The record does not include any of the preferred evidence of common law marriage (i.e., signed statements). See 20 C.F.R. § 404.726(b); POMS GN 00305.065. Moreover, the record does not include an explanation from NH as to why she did not provide the preferred evidence. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.

As stated above, evidence tending to show the existence of a common law marriage may include the parties living together as man and wife, holding themselves out to the world as man and wife, and other facts that usually indicate marriage. The only evidence that the NH and G~ held themselves out as married in the information provided is a “Final Judgment and Decree of divorce” signed by a Superior Court Judge stating that the marriage contract the parties had entered into was set aside and dissolved. In divorce and alimony cases, a final decree has the effect of binding the parties and their successors as to all matters that were actually put in issue and decided, or that by necessary implication were decided between the parties. See Dial v. Adkins, 595 S.E.2d 332, 334 (Ga. Ct. App. 2004) (stating that as a matter of public policy, the doctrine of res judicata is less strictly applied in divorce and alimony cases). However, the decree does not bind third parties. See Shepherd v. Foskey, 194 S.E.2d 110, 112 (Ga. 1972) (involving a divorce decree determining the ownership of property as between the spouses)

One might argue that the divorce decree implicitly decided that a common law marriage had existed under Social Security Ruling (SSR) 83-37c, which adopts as national policy the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). This SSR explains that the Commissioner is not bound by a decision of a State trial court in a proceeding to which he was not a party, but he is not free to ignore an adjudication of a state trial court where: (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. However, the instant case is distinguishable in that the State court did not determine the issue of the validity of the common law marriage, and the issue of common law marriage was not “genuinely contested before the State court by parties with opposing interests.” Id.

The divorce decree also indicates NH and G~ had two children in 1990-1991, and SSA records designate G~ as the children's father. However, "there is no presumption that two persons who cohabited and procured a child were married at common law; more must be shown." Dixon v. State, 456 S.E.2d 758 (Ga. App. 1995). In this case there is no evidence that the NH and G~ even cohabited or in any way held out that they were married. Nor is there evidence NH used G~’s name prior to 1997, when Georgia recognized common law marriage. NH used G~’s name in the 2003 divorce decree and in medical records of primary care treatment post-dating her divorce. However, such usage was not contemporaneous with the other conditions necessary to prove a common law marriage.

CONCLUSION

We defer to your determination of whether the divorce decree is alone acceptable evidence for an SSA name change pursuant to POMS RM 10212.010. We do not believe the divorce decree and other evidence establish that the number holder was in a common-law marriage under Georgia law and, therefore, SSA cannot change the number holder's name based on a common-law marriage.

Mary A. S~
Regional Chief Counsel
By__________
Haila N. K~
Assistant Regional Counsel

B. PR 06-143 Legal Name Change in Georgia Based on Common Law Marriage

DATE: May 25, 2006

1. SYLLABUS

The common law marriage in question is not a legal basis for a name change on the SSN card. Convincing evidence of a common law marriage under the regulations or Georgia law was not provided with this request. Therefore, a proper determination cannot be made as to whether Georgia would allow a person to change his or her legal name based on a common law marriage in this particular case.

2. OPINION

QUESTION

You asked whether Georgia law allows a man or a woman to make a legal name change based on a common law marriage.

ANSWER

For the reasons stated below, we believe Georgia law would recognize a legal name change based on a common law marriage, but we cannot offer an opinion on this particular case given the information available.

BACKGROUND

According to the information we received, Retha S. M~ (NH) has asked the Social Security Administration to reflect her name in its records as changed to Sue T~. NH requests the name change based on her relationship with an individual she describes as her deceased husband, Marvin L. T~ (the deceased). NH did not formally marry the deceased, but she thinks their relationship began in 1978 or 1979. NH is receiving benefits through the Department of Veterans Affairs as the widow of the deceased. NH uses the deceased's surname on her driver's license and has for many years. She also filed for and received the lump sum death payment on the account of the deceased.

DISCUSSION

Social Security regulations provide that a number holder may request that his or her records be changed, including his or her name. See 20 C.F.R. §§ 401.65, 422.110 (2006). The number holder must present sufficient evidence to justify a change in his or her records. See 20 C.F.R. §§ 422.107, 422.110 (2006). POMS RM 00203.210 provides that Agency personnel should ask for a document, such as a marriage certificate or court order for a name change, as evidence to support a change to the number holder's name. However, POMS RM 00203.210 also states that “[i]n common law marriage situations, consult with your RO about whether such a union is an event for a legal name change in the State of residence. The RO may need to submit the issue to the Regional Chief Counsel for a legal opinion.”

Georgia law provides that an individual may change his or her name through a marriage license. See GA. CODE ANN. § 19-3-33 (2005). Georgia law also provides that an individual may change his or her name by filing a petition in superior court. See GA. CODE ANN. § 19-12-1 (2005). When applying for a marriage license, a spouse may use as his or her legal surname the name of his or her spouse. See GA. CODE ANN. § 19-3-33.1 (2005). Georgia law recognizes common law marriages entered into before January 1, 1997, see GA. CODE ANN. § 19-3-1.1 (2005), but Georgia law is silent on whether an individual can change his or her name based on common law marriage. However, the Georgia's Office of the Attorney General issued a legal opinion in 1974 stating that a married woman adopted her husband's surname by operation of law. See 1974 Op. Att'y Gen. 74-33. In 1975, the Georgia Attorney issued another legal opinion stating that “any statute of this state which requires a person to supply his 'legal name' requires a married woman to state her husband's last name as her own.” 1975 Op. Att'y Gen. 75-49. The Attorney General also stated that the statutory proceeding for changing a person's legal name “is not the exclusive mechanism by which a person's legal name can be changed. At common law a person could change his legal name at will through usage of a new name. . . . A married woman may also change her legal name by usage.” Id. Because a valid common law marriage entered into before January 1, 1997, is a legal marriage under Georgia law in the same vein as a formal marriage that results in a marriage certificate, one can infer that Georgia would accept a common law marriage as a basis for a name change. See id.; see also Smithers v. Smithers, 804 So. 2d 489, 492 (Fla. Dist. Ct. App. 2001) (“The acquisition of the husband's surname upon marriage is a common law tradition”). In addition, as noted by the Georgia Attorney General, usage of another name may also provide as basis for a legal name change.

Thus, assuming NH was in a common law marriage with the deceased before January 1, 1997, we believe that Georgia would accept their common law marriage as a basis for NH changing her legal name to Sue T~. NH's usage of T~ as her last may also provide a basis for changing her name under Georgia law. However, based on the information we have, we are unable to determine whether NH was in a common law marriage with the deceased before January 1, 1997, or whether NH's usage of the name T~ was sufficient to establish a name change.

Nothing in the information provided suggests that NH was the mother or child of the deceased. Therefore, the Agency may have determined that NH was the widow of the deceased when the Agency awarded NH the lump sum death payment for the deceased. See 20 C.F.R. §§ 404.345, 404.346 (2006). To be considered the widow of an insured individual under 20 C.F.R. § 404.345, the Agency looks to the law of the state where the insured individual had a permanent home when he died. The relationship requirement will be met if the person and the insured individual were validly married under state law at the time the insured individual died or if under state law the person would be able to inherit a widow's share of the insured individual's personal property if he died without leaving a will. See 20 C.F.R. § 404.345.

Given the information provided, we cannot determine the basis upon which the Agency may have determined that NH was the widow of the deceased and thus entitled to the lump sum death payment. If the deceased's permanent home at the time of death was Georgia, the Agency may have determined that NH was the common law wife of the deceased under Georgia law pursuant to the regulations.

When a person applies for benefits, including a lump sum death payment, as the insured person's husband or wife, he or she must present evidence of the marriage and where and when it took place. See 20 C.F.R. § 404.723 (2006). In deciding whether the marriage to the insured was valid or not, the Agency follows the law of the state where the insured person had his or her permanent home when he or she died. See id. A common law marriage is one considered valid under some states' laws even though there is no formal marriage ceremony. See 20 C.F.R. § 404.726(a) (2006). A common law marriage is a marriage between two persons free to marry, who considered themselves married, live together as husband and wife, and in some states, meet certain other requirements. See id. Preferred evidence of a common law marriage is: (1) if both the husband and wife are alive, their signed statements and those of two blood relatives; (2) if either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives; or (3) if both the husband and wife are dead, the signed statements of one blood relative of each. See 20 C.F.R. § 404.726(b). If the applicant cannot get preferred evidence of a common law marriage, he or she must explain why and provide other convincing evidence of the marriage. See 20 C.F.R. § 404.726(c).

As noted previously, Georgia law recognizes common law marriages entered into before January 1, 1997. See GA. CODE ANN. § 19-3-1.1 (2005). To establish a common law marriage, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. See GA. CODE ANN. § 19-3-1 (2005); In re Estate of L~, 618 S.E.2d 97, 100 (Ga. Ct. App. 2005). All three elements must be met simultaneously, and the relationship cannot be partial or periodic. See In re Estate of L~, 618 S.E.2d at 100-02. The proponent of a common law marriage has the burden of proving that a common law marriage existed. See id., at 100. Evidence tending to show the existence of a common law marriage may include the parties living together as man and wife, holding themselves out the world as man and wife, and other facts that usually indicate marriage. See id., at 101. The use of a purported spouse's name may provide evidence of a common law marriage, but failure to do so does not necessarily undermine other evidence establishing a common law marriage. See Beals v. Beals, 416 S.E.2d 301, 302-03 (Ga. Ct. App. 1992) (woman adjudged to be common law wife referred to herself by common law husband's name, maintained joint checking account, signed contracts together, but used maiden name when filing tax returns and applying ).

We recognize the Agency may not have provided additional information on the issue of whether a common law marriage existed because the Agency has already decided the issue. Nevertheless, we note that the information provided does not appear to be convincing evidence of a common law marriage under the regulations or Georgia law. See In re Estate of L~, 618 S.E.2d at 100-01; B~, 416 S.E.2d at 302-03. The information also does not include any of the preferred evidence of common law marriage (i.e., signed statements) required by the regulations. See 20 C.F.R. § 404.726(b). Moreover, the information does not include an explanation from NH as to why she did not provide the preferred evidence. See 20 C.F.R. § 404.726(c). The information indicates that NH claims she was in a relationship with the deceased beginning in 1978 or 1979, receives benefits from the Veterans' Administration as the widow of the deceased, and uses “T~” on her driver's license. Although this evidence would tend to indicate that NH was in a common law marriage with the deceased, if the Agency has not decided the issue of whether a common law marriage existed between NH and the deceased, we believe the evidence should be further developed on the issue. For example, the Agency could obtain signed statements from NH and two blood relatives regarding the relationship of NH to the deceased; obtain information related to NH's receipt of Department of Veterans Affairs benefits as the spouse of the deceased; the deceased death certificate to determine if NH was listed as his widow; and obtain tax return information for NH and the deceased.

CONCLUSION

We believe that Georgia would allow a person to change his or her legal name based on a common law marriage. However, we are unable to determine whether the facts presented warrant such a conclusion in this particular case.

Mary A. S~
Chief Counsel, Region VII
By__________
Brian C. H~
Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1502720012
PR 02720.012 - Georgia - 11/23/2011
Batch run: 11/23/2011
Rev:11/23/2011