TN 4 (11-07)
PR 02720.030 Nebraska
A. PR 07-077 Request for Legal Opinion-Use of Oklahoma Common-Law Marriage Agreement by Nebraska Resident as Evidence of Legal Name Change
DATE: October 3, 2007
The State of Nebraska does not recognize the Oklahoma Common Law Marriage Agreement in question as evidence of a legal name change.
a. Issues Presented
You have asked whether an Oklahoma Common-Law Marriage Agreement is sufficient proof of a legal name change in Nebraska. For the following reasons we believe it is not.
The documentation submitted to this office shows that Lisa G. H~ was divorced from John H. H~ on December 6, 1993, in Kansas City, Missouri, and is now a resident of Omaha, Nebraska. According to a Common-Law Marriage Agreement ("Agreement") signed by Ricky D~ A~ on April 30, 2004, and by Lisa H~ on July 6, 2004, the two became husband and wife, and Lisa H~ assumed the name of Lisa A~. On September 14, 2006, Ms. H~ filed an SS-5 application seeking to have her surname changed to A~ and provided the Agreement in support of her application.
Whether an Oklahoma Common Law Marriage Agreement is sufficient to establish a Legal Name Change in Nebraska?
In order to receive a replacement SSN card for a name change based on a domestic marriage, certain evidence is required. The applicant must provide evidence of the following: the name change event, the new name, and the number holder's identity as shown on the latest Numident record. See Emergency Message ("EM")-06064- - Enumeration: Change in Policy Regarding Acceptable Name Change Documents for a Replacement SSN Card for a Name Change (effective October 2, 2006).
1. Evidence of Name Change Event
The following documents are acceptable evidence of a legal name change due to a domestic marriage: 1) U.S. issued ceremonial marriage documents and 2) U.S. State recognized same sex marriage documents; civil union documents; and domestic partnership documents. See EM-06064 A.1. For a U.S. resident, a legal name change based on a U.S. marriage depends on the laws of the State where the marriage occurred. See POMS RM 00203.210 B.1. However, in common law marriage situations, the law of the state where the applicant resides must be examined to determine whether common law marriages are recognized as an event for a legal name change. Id. In this case, the applicant resides in Nebraska and her common law marriage occurred in Oklahoma. Because Nebraska accepts marriages that are validly entered into in other states, a common law marriage of another state would be accepted in Nebraska. Thus, the underlying question is whether the Ms. H~'s common law marriage was valid in Oklahoma.
In order to establish a valid common law marriage in Oklahoma, the party asserting common law marriage must prove the following by clear and convincing evidence: a mutual present agreement between competent parties to be husband and wife; a permanent relationship; an exclusive relationship, proved by cohabitation as man and wife; and the parties hold themselves out publicly as husband and wife. See Standefer v. Standefer, 26 P.3d 104, 107 (Okla. 2001); Muggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992) (citing Rath v. Maness, 470 P.2d 1011, 1013 (Okla. 1970)); Mudd v. Perry, 235 P. 479, 483 (Okla. 1925); Davis v. State, 103 P.3d 70, 82 (Okla. Crim. App. 2004); Boyd v. Monsey Construction Company, 959 P.2d 612, 614
(Okla. Ct. App. 1998) (citations omitted).
Oklahoma has not recognized a document such as the Agreement provided by Ms. H~ as sufficient to establish a common law marriage. In Boyd v. Monsey, 959 P.2d 612, 614, n. 6 (Okla. Ct. App. 1998), the Oklahoma Court of Appeals held that an affidavit similar to the Agreement submitted by the Ms. H~ is sufficient to establish actual and mutual agreement of the parties, but specifically declined to decide whether the affidavit by itself required a finding that a common law marriage existed because it was not specifically faced with that question. Therefore, we do not believe that the Agreement, by itself, is sufficient to establish a common law marriage and Ms. H~ must meet all the requirements specifically set forth in case law in order to establish a common law marriage.
While an agreement such as the one submitted by Ms. H~ could serve as evidence of a present mutual agreement, if signed by both parties at the same time, the Agreement in this case was signed by the parties three months apart. Thus, the three month delay is signing the Agreement makes the existence of a present mutual agreement questionable. Also, Ms. H~ has also failed to provide any evidence relating to the permanency, exclusivity, or the public nature of her alleged common law marriage. Before the Agency can recognize Ms. H~'s relationship with Mr. A~ as a recognized name change event, Ms. H~ will need to submit additional evidence which meets Oklahoma requirements for a common law marriage. Without such additional documentation, the Agency does not have clear and convincing evidence that a legally recognized name change event occurred. Examples of documents that the Ms. H~ might be requested to submit include, but are not limited to, documents that contain both Ms. H~'s new name and Mr. A~'s name, which directly or indirectly refers to them as husband and wife and reflects the same address, such as utility bills, bank statements, or mortgage or lease documents.
2. Evidence of New Name
In situations where "the bride wants to take her husband's name, [the Agency can] accept the marriage document as a legal name change for the bride if the new name can be derived from the marriage document; even if the marriage document only shows each partner's first names, the bride's prior surname and husband's surname. The marriage document alone can be accepted as evidence of identity for both the old and the new names only when it meets the criteria described in RM 00203.200G.2," which includes the bride's name, biographical information, such as date of birth, age, or parents' names and/or physical information, such as a physical description or photograph. POMS RM 00203.210 B.1.a. (Interim Guidance) and 00203.200 G.2; EM-06064 A.2 (making the Interim Guidance in POMS RM 0203.210 B.1.a. permanent). The Agreement submitted by Ms. H~ shows her prior surname as H~, her husband's surname as A~, and her new surname as A~. Because Ms. H~'s new name can be derived from the Agreement, the Agreement can be accepted as evidence of her new name once she submits additional evidence showing that a common law marriage exists.
3. Evidence of Number Holder's Identity as Shown on Latest Numident Record.
A marriage document is an acceptable identity document for a name change if:
Marriage occurred within the past two years, and
The document has the number holder's name and biographical information such as age, date of birth, or parents' names, which matches the data on the latest Numident record.
EM-06064 A.3. The Agreement is not an acceptable identity document because it does not establish a common law marriage and does not contain needed biographical information. Thus, Ms. H~ "must submit an identity document in her old name (as shown on the latest Numident record), in addition to the marriage document." EM-06064 A.3. The identity document in the old name must contain Ms. H~ old name and biographical information that the Agency can compare with data on the SS-5 (e.g., date of birth, age, or parents' name) and/or physical information that the Agency can compare with the applicant (e.g., physical description, photograph). POMS RM 00203.200 G.2. For establishing identity in the old name, the priority lists of acceptable identity documents found at POMS RM 00203.200 E must be consulted. EM-06064 A.3. Based on the age of Ms. H~, an unexpired driver's license is the preferred acceptable identity document. See POMS RM 00203.200 E.6. Although Ms. H~ submitted a Nebraska driver's license that contains a date of birth, a photograph, and is presumably current, the license was issued in her new name, not her old name. Thus, the submitted driver's license does not satisfy the requirements of an identity document. Therefore, Ms. H~ should be asked to submit an acceptable identity document that has the highest probative value in accordance with the table contained in POMS RM 00203.200 G.6.
Frank V. S~ III
Chief Counsel, Region VII
Janice E. B~-W~
Assistant Regional Counsel