TN 6 (08-08)
PR 02720.040 Oklahoma
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
B. PR 07-071 Oklahoma Affidavit of Common Law Marriage as Support for Legal Name Change Due to Marriage (NH Sandra O~ F~; SSN ~) - REPLY
DATE: February 5, 2007
The State of Oklahoma accepts an Oklahoma Affidavit of Common Law Marriage as evidence of a legal name change. The individual must also submit an acceptable identity document listed in RM 00203.200E. since the name change document is an affidavit which may not be based on acceptable documentary evidence of identity.
This memorandum is in response to your request for an opinion on whether the State of Oklahoma would accept an Affidavit of Common Law Marriage as support for a legal name change due to marriage. In our opinion, Oklahoma would accept an Affidavit of Common Law Marriage as support for a legal name change due to marriage, provided that in conjunction with the affidavit, the applicant submits two additional forms of identification, a primary and secondary proof of identification listed in Attachment A.
As we understand the facts, Sandra O~, the number holder, is an Oklahoma resident. On December 9, 2005, Sandra O~ and James R. F~, Jr., signed an Affidavit of Common Law Marriage in the State of Oklahoma. The Affidavit of Common Law Marriage states that James R. F~, Jr. and Sandra O~ are of lawful age, have been living together, and hold themselves out to others in the community as husband and wife; that they intend to live as husband and wife; that they meet all the legal requirements for a common law marriage; and that Sandra has accepted and is using F~ as her legal surname. Ms. O~ applied for a replacement Social Security card at the Moore, Oklahoma Social Security Administration field office. She presented an Affidavit of Common Law Marriage to support her request for a name change due to marriage.
The Intelligence Reform and Terrorism Prevention Act requires the Social Security Administration (Agency) to "establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card." See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(l)(B). The Agency requires a legal document to change an applicant's name on the Social Security Number record. See Social Security Administration Program Operations Manual System (POMS) Records Maintenance (RM) 00203.210A.2. "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." POMS RM 00203.210B.1. In all 50 U.S. States, a wife may take her husband's last name as her new last name. See POMS RM 00203.210B.1.b.1
Oklahoma recognizes marriage as a legal basis for changing a person's name.2 Oklahoma statutes and case law are silent regarding the evidence required to prove that a common law marriage3 has resulted in a name change. However, to change the name on an Oklahoma driver's license or identification card due to a common law marriage, the Oklahoma Department of Public Safety requires the person requesting the name change to submit an Affidavit of Common Law Marriage,4 "containing the notarized signatures of the husband and wife," in conjunction with additional identification that is required to obtain an initial Oklahoma driver's license.5 See Okla. Admin. Code § 595:10-l-35(c)(3) (2006).
As discussed above, the Agency looks to state law legal name-change requirements in determining Agency documentation requirements to issue replacement Social Security cards. Because Oklahoma accepts an Affidavit of Common Law Marriage as part of the required documentation for a name change due to common law marriage, the Agency may also accept such an affidavit for the same purpose. Both husband and wife must sign the affidavit, and in conjunction with the affidavit, the number holder requesting the name change must present two additional sources of identification, consistent with the primary and secondary forms of identification listed in Attachment A.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel
1 Emergency Message (EM) 06064 SEN makes RM 00203.210B.1.a. to B.1.c. permanent.
2 The Oklahoma Change of Name Act provides the exclusive method for changing a person's name, except when the change is by marriage, decree of divorce, or adoption. See Okla. Stat. Ann. tit 12, § 1637 (2006); see also Sneed v. Sneed, 585 P.2d 1363, 1365 (Okla. 1978). In Oklahoma, under common law, a married woman acquires her husband's name by repute as a matter of custom. See Sneed, 585 P.2d at 1365.
3 Oklahoma recognizes common law marriages, but a party asserting a common law marriage must show that there was an agreement to be husband and wife; that a permanent relationship existed; that an exclusive relationship existed, proved by cohabitation; and that the parties publicly presented themselves as husband and wife. See In Re Love's Estate, 142 P. 305 (Okla. 1914); Earnheart v. Earnheart, 1999 OK CIV APP 42, 5, 979 P.2d 761, 763.
4 Oklahoma statutes are silent regarding Affidavits of Common Law Marriage. As a result, Oklahoma has no statutory requirements regarding the information that should be included in such an affidavit. However, an Oklahoma court has accepted an Affidavit of Common Law Marriage as evidence that a common law marriage existed. See Boyd v. Monsey Construction Company, 1998 OK CIV APP 112, 4, 959 P.2d 612, 613-15.
5 In Oklahoma, every applicant must furnish both primary and secondary documentary proof of identity, full legal name, and birth date, when applying for an initial Oklahoma driver's license. See Okla. Admin. Code § 595:10-1-3(b).
The Oklahoma Department of Public Safety accepts the following documents as primary proof of identification:
A certified birth certificate;
A passport (excluding certain passport classifications);
A United States Armed Services identification document;
A United States Bureau of Indian Affairs identification card or a valid Oklahoma tribal photo identification;
A State of Oklahoma identification card issued by the Department of Public Safety;
A United States Immigration and Naturalization Service identification document
An out-of-state driver's license;
An Oklahoma driver's license; and
A valid finger image comparison.
See Okla. Admin. Code § 595:10-l-3(b)(1).
The Oklahoma Department of Public Safety accepts the following documents as secondary proof of identification:
Any primary proof of identification not used as primary identification;
For any person under the age of 18, an affidavit signed by the parent or legal guardian;
A photo identification card issued by an Oklahoma institution of higher education, technology center school, employer, or a public, private, or parochial secondary school;
An Oklahoma gun permit;
A pilot license;
An Oklahoma lifetime hunting or fishing license;
An Oklahoma voter identification card;
A Social Security card;
A health insurance card;
A motor vehicle registration or title;
A marriage certificate;
A separation or divorce judgment;
A high school, technology center school, college, or university diploma;
A professional degree, certificate, or license;
An Oklahoma deed or title to property;
A health, life, or home insurance policy issued to the applicant;
An automobile insurance policy or security verification form issued to the applicant;
A valid U.S. Department of Transportation health card; and
A digital photograph comparison, if an Oklahoma Department of Public Safety-generated digital photograph is already on file.
See Okla. Admin. Code § 595:10-l-3(b)(2).