TN 2 (02-08)
PR 04805.001 Alabama
A. PR 08- 055 Validity of Common-Law Marriage in Alabama Claimant - Carolyn S~ Number Holder - Joseph S. S~
DATE: January 28, 2008
The resumption of cohabitation between former spouses after their divorce does not, in itself, establish a common-law marriage, because the parties must also manifest a mutual intent to be man and wife. Under Gray v. Richardson the Agency would not be free to ignore the court's order finding there was no common-law marriage given that both NH and claimant appeared and were represented in the State court civil action.
As discussed in greater detail below, we believe the claimant failed to present sufficient evidence to show that she is the number holder's spouse through a valid common-law marriage.
The facts as presented are that Carolyn S~ (Claimant) filed an application for auxiliary benefits in April 2007 as the wife of Joseph S. S~, the number holder (NH). NH was domiciled in Alabama when Claimant filed her application. Although Claimant previously filed a claim for retirement benefits on her own record, she claims she had not sought benefits on NH's record because she did not want the Agency to contact him given the abusive nature of their relationship. Claimant admitted during her interview that a judge had previously ruled she and NH did not have a common-law marriage; however, she claims they resumed living together after the court order, this time as husband and wife. As evidence of a common-law marriage, Claimant presented a copy of a marriage license dated March 28, 1987; a 1991 insurance policy listing NH and Claimant as “Steve S~ & Carolyn S~”; a March 1992 deed listing them as a married couple; tax assessor records from 1995 and 1996; a SSA-754 form completed by Claimant; and a SSA-753 form completed by her sister. Although the Agency sent 753 and 754 forms to NH on two occasions, he returned these forms without completing them. The Agency was also unable to contact NH by phone. Based on the evidence supplied by Claimant, the Agency found that she was entitled to benefits on NH's account as his wife in a decision dated August 22, 2007.
On November 27, 2007, NH came to the Bessemer, Alabama field office to ask about the benefits being paid to Claimant on his account. Although NH was unwilling to provide a signed statement, he reported he did not have a common-law marriage with Claimant and presented three pieces of evidence to support his position: (1) a divorce decree dated March 11, 1988; (2) an order from the Circuit Court of Jefferson County, Alabama, dated January 14, 1992, finding that NH and Claimant had not entered into a common law marriage; and (3) an order dated September 6, 2001, in which the Circuit Court of Jefferson County, Alabama, again found that NH and Claimant were not common-law married as alleged by Claimant. Subsequently, Claimant presented a copy of a 2001 tax notice listing the couple as divorced.
Although Claimant acknowledges she and NH divorced, she alleges that they began living together as husband and wife after the divorce. In order to qualify for wife's insurance benefits, the “wife” or “divorced wife” of an individual entitled to old-age or disability insurance benefits must file an application; have attained age 62; in the case of a divorced wife, have not remarried; and not be entitled to old-age or disability insurance benefits, or her benefit amount is less than one-half the primary insurance amount of such individual. Social Security Act (Act) § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.331 (2007). In pertinent part, the term “wife” means the wife of an insured individual, but only if she was married to him for a period of not less than one year preceding the date she filed her application. Act § 216(b)(2); 20 C.F.R. § 404.330(a)(1) (2007). A woman is the “divorced wife” of an insured individual if she is “divorced from [the] individual, but only if she had been married to such individual for a period of 10 years immediately before the date the divorce became effective.” Act § 216(d)(1); 20 C.F.R. § 404.331(a)(2). Because Claimant and NH were married less than a year prior to their March 1988 divorce, she would only be eligible for wife's insurance benefits if she establishes that she and the NH remarried after their divorce.
Claimant alleges that she and NH entered into a common-law marriage after their divorce. An applicant may qualify as the wife of an insured individual if “the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . .” Act § 216(h)(1)(A)(i); see 20 C.F.R. § 404.331(a)(1) (2007). Social Security regulations define common-law marriage as one considered valid under a state's laws even though there is no formal marriage ceremony. 20 C.F.R. § 404.726(a) (2007). Because Claimant was domiciled in Alabama when Claimant filed her application, we look to Alabama law to determine if they entered into a common-law marriage after their divorce.
Alabama recognizes common-law marriage and treats it as “a co-equal, alternate method of validating the connubial union of two people.” Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978). The elements of a valid common-law marriage under Alabama law are: (1) the capacity to marry; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990). The mere resumption of cohabitation between former spouses after their divorce does not, in itself, establish a common-law marriage, because the parties must also manifest a mutual intent to be man and wife. Hudson v. Hudson, 404 So. 2d 82, 83 (Ala. Civ. App. 1981). As a result, Claimant must show more than the mere fact that she and the NH resumed living together after their divorce in order to demonstrate the existence of a common-law marriage.
“Preferred evidence” of a common-law marriage includes: (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. 20 C.F.R. § 404.726(b). If a claimant cannot get preferred evidence, the Agency will also accept other convincing evidence such as mortgage/rent receipts, insurance policies, medical records, bank records, etc., to substantiate that the couple considered and held themselves out as husband and wife. 20 C.F.R. § 404.726(c); Program Operations Manual System (POMS) GN 00305.065(3). In this case, Claimant did not provide “preferred evidence” of a common-law marriage, as NH is alive and he did not provide a signed statement that he was Claimant's husband. Instead, Claimant presented her own statement, a statement from her sister, and certain insurance and property records listing Claimant and NH as a married couple. This evidence appears sufficient to support the Agency's original determination in August 2007 that Claimant was the common-law wife of NH.
Although NH did not provide a signed statement, he supplied compelling evidence after Agency's August 2007 determination suggesting no common-law marriage ever existed with Claimant. Specifically, NH provided an order dated September 6, 2001, in which the Circuit Court of Jefferson County, Alabama, found that NH and Claimant did not have a common-law marriage. Courts in Alabama “closely scrutinize claims of common-law marriage and require clear and convincing proof thereof.” Gray v. Bush, 835 So. 2d 192, 193 (Ala. Civ. App. 2001) (quoting Stringer v. Stringer, 689 So. 2d 194, 197 (Ala. Civ. App. 1997)). Although the Commissioner is not bound by the decision of a state court in a proceeding to which he was not a party, the court's order would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, the Agency adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In Gray, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. The Agency would not be free to ignore the court's order finding there was no common-law marriage given that both NH and Claimant appeared and were represented in the state court civil action. Additionally, the order appears consistent with Alabama law because the evidence suggests that there was no agreement or mutual consent between NH and Claimant to enter into the marriage relationship.
We believe that the 2001 order finding that no common-law marriage existed between Claimant and NH would provide a basis for reopening the Agency's August 2007 decision awarding wife's insurance benefits to Claimant. The Agency may reopen a determination or decision within twelve months of the date of the notice of the initial determination for any reason. 20 C.F.R. § 404.988(a) (2007). In addition, the Agency may reopen a determination or decision within four years of the date of the notice of the initial determination if new and material evidence is furnished, or at any time if the decision was obtained by fraud or similar fault. See 20 C.F.R. §§ 404.988(b), (c)(1), 404.989(a)(1) (2007). Not only does the 2001 order provide clear and convincing evidence that a valid common-law marriage did not exist, but also Claimant's failure to disclose its existence suggests she may have obtained a favorable decision by fraud or similar fault. Given these factors, the Agency should consider reopening the August 2007 decision and denying Claimant's application.
As submitted, the facts suggest that Claimant is not entitled to wife's insurance benefits as NH's spouse. Although Claimant presented evidence that could support a determination that a common-law marriage existed, the state court order provides clear and convincing evidence that she was never NH's common-law wife under Alabama law. As a result, the 2001 court order, coupled with Claimant's failure to disclose its existence, provides ample support for reopening the August 2007 determination and denying her application.
Mary A. S~
Regional Chief Counsel
Joseph P. P~, III