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