TN 4 (08-07)

PR 05110.052 Virginia

A. PR 07-177 Reply to Your Request for a Legal Opinion as to Whether John E~, the Deceased Number Holder (SSN ~) and Mary Marie E~ had a Valid Marriage Under the Law of Virginia.

DATE: July 11, 2007

1. SYLLABUS

Under Virginia law there is a rebuttable presumption of the validity of the second marriage and of the dissolution of the first marriage by divorce. The Agency must determine if the NH's prior marriage terminated before applying the validity of the last marriage presumption. The party seeking to overcome the presumption of the validity of the second marriage has a burden of showing that no divorce was entered in jurisdictions where the parties resided or where on any reasonable basis a decree might have been obtained.

2. OPINION

QUESTION PRESENTED

You requested our opinion as to whether John E~ (the Number Holder) and Mary Marie E~ had a valid marriage under the law of Virginia.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law. Based on the information provided, it appears possible that the marriage between the Number Holder and Mary Marie E~, the Number Holder's second marriage, may not have been valid under the law of Virginia because a prior marriage between the Number Holder and May Queen E~ had not been dissolved by divorce. We believe, however, that additional development of the record is necessary because the evidence is insufficient to overcome the presumption of the validity of the last marriage under Virginia law.

BACKGROUND

Your memorandum of May 31, 2007 stated that May Queen R~ and the Number Holder, who were then both single, married on October 17, 1964 in Emporia, Virginia. Additional information from May Queen E~ (May Queen) indicated that she and the Number Holder separated in 1979 or 1980, that both she and the Number Holder continued to live in Virginia after the separation, and that she never filed for divorce, was never notified that the Number Holder had filed for divorce, and never received any divorce papers. A document provided with the memorandum shows that the Commonwealth of Virginia has no record of a divorce between the Number Holder and "May Queen E~" during the period 1970 through January 2006. We have also been informed that the Number Holder died on June 5, 1995 and that May Queen filed an application for disabled widow's benefits in March 2006 and that her application was approved.

With respect to Mary Marie E~, the documents provided advise that she was divorced from Nathaniel S~ on September 10, 1979, that she married the Number Holder on May 10, 1989 in Emporia, Virginia, that she applied for disabled widow's benefits in December 1999, and that her application was approved at the reconsideration level in June 2000.

DISCUSSION

1. The Applicable Federal Regulations

The federal regulations at 20 C.F.R.§ 404.345 provide that if a claimant and the insured were validly married under the law of the state of the insured's permanent residence at the time of his death, the relationship requirements of widow or widower for purposes of the Social Security Act are met.

2. Virginia Law

We assume for purposes hereof that the Number Holder died a Virginia domiciliary as he appears to have been a resident of Virginia from birth through most of his life. We further assume that a death certificate has been provided to the Agency (although not to us) establishing that fact. Under the laws of Virginia, a marriage entered into prior to the dissolution of an earlier marriage of one of the parties, is prohibited and void. Va. Code Ann. §§ 20-38.1(a) (1); 20-43; 20-45.1(a). However, where two marriages of the same person are shown, there is a strong but rebuttable presumption that the second marriage is valid because it is presumed that the prior marriage was terminated by death or divorce. Hewitt v. Firestone Tire & Rubber Co., 490 F.Supp. 1358, 1362 (E.D.Va. 1980); De Ryder v, Metropolitan Life Insurance Corp., 145 S.E. 2d 166 (1965); Parker v. American Lumbar Corp., 56 S.E.2d 214, 216 (Va. 1949).

3. The Evidence Presented Strongly Indicates that the Marriage of the Number Holder and May Queen Was Not Dissolved By Divorce and Thus that the Marriage between the Number Holder and Mary Marie Was Not Valid.

As stated above, the Number Holder and May Queen were married in Emporia, Virginia on October 17, 1964. The certificate of marriage shows that both the Number Holder and May Queen were born in Virginia and that the Number Holder then resided in Virginia. The Number Holder's history of earnings indicates that his employment was for employers situated in Virginia. The Number Holder and Mary Marie were married in Virginia. As stated above, we are assuming that the Agency has evidence that the Number Holder died in Virginia. Information generated in connection with their applications for disabled widow's benefits show that both Mary Marie and May Queen continue to reside in Virginia. May Queen has stated that both she and the Number Holder lived in Virginia after their separation in 1979 or 1980. The Number Holder's ties to Virginia are thus significant and lifelong. Virginia is likely to be the state in which the Number Holder would have obtained a divorce from May Queen, if he actually had done so.

It is, accordingly, significant that the Commonwealth of Virginia has provided a report that no record of a divorce of the Number Holder and May Queen was found in its records for the period 1970 through January 2006. Additionally, May Queen has stated that she never filed for divorce, that she was never notified that the Number Holder had filed for divorce, and that she never received any divorce papers. The information provided to date thus strongly indicates that the marriage between the Number Holder and May Queen had not been dissolved by divorce when the Number Holder and Mary Marie married in Emporia, Virginia on May 10, 1989 and thus that the purported second marriage was not valid under Virginia law. Va. Code Ann. §§ 20-38.1(a) (1); 20-43; 20-45.1(a). The only evidence to the contrary of which we are aware is Mary Marie's statement on her application for benefits that the Number Holder had been previously married and that the prior marriage ended in divorce; Mary Marie did not provide proof of that divorce. Since we do not have a copy of the application, we do not know whether she provided information concerning the date or state of the alleged divorce.

4. Although the Evidence Presented Indicates that the Marriage of the Number Holder and May Queen Was Not Dissolved By Divorce and Thus that the Marriage Between the Number Holder And Mary Marie Was Not Valid, the Record Is Not Sufficiently Developed To Show that the Presumption of the Validity of the Second Marriage to Mary Marie Has Been Overcome.

Although the evidence presented indicates that the marriage of the Number Holder and May Queen was not dissolved by divorce and thus that the marriage between the Number Holder and Mary Marie was not valid, the information and documents provided to date are not sufficient to show that the presumption of the validity of the second marriage to Mary Marie has been overcome.

As stated above, under Virginia law, there is a rebuttable presumption of the validity of the second marriage and of the dissolution of the first marriage by divorce. First, and most significantly, the search of divorce records by the Commonwealth of Virginia was limited to the period 1970 through January 2006 but should also include the period 1964 to 1970, notwithstanding May Queen's recollection that she and the Number Holder "separated" in 1979 or 1980. There is also an issue concerning different spellings of May Queen's name as well as the statement of the Number Holder's name since on the marriage certificate with Mary Marie, his name is stated as "John E~" and not "John E~, Jr." as it is stated on the marriage certificate with May Queen. We cannot state whether the results of the search of divorce records by the Commonwealth of Virginia would be different if the "alternate" names were also searched.

Next, the documents provided to us do not include evidence, even by way of clear statement, that the Number Holder and May Queen resided in Virginia at all times during their marriage. Such evidence is important in light of the presumption of the validity of a second marriage under Virginia law because a party challenging the second union is required to "introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the former marriage was not dissolved." Hewitt v. Firestone Tire & Rubber, 490 F.Supp.1358, 1362 (E.D.Va. 1980) (citations omitted). While the party seeking to overcome the presumption of the validity of the second marriage is not compelled to document the absence of a divorce in every jurisdiction where one could have been obtained, the "Virginia litigant seeking to negate the existence of a divorce generally does have a burden, however, of showing that no divorce was entered in jurisdictions where the parties resided or where on any reasonable basis a decree might have been obtained." Id. at 1364.

For the same reasons and to comply with POMS GN ATL00305.030 Presumption Validity of Last Marriage (PVLM), additional information concerning the locations in which the Number Holder lived since separating from May Queen and a search of North Carolina divorce records are required. Although May Queen has stated that the Number Holder lived in Virginia after their separation, information on the marriage application for the second marriage to Mary Marie indicates that he was residing in North Carolina in May 1989. PVLM provides that, in order to determine whether the prior marriage terminated or continued, the whereabouts of the parties to a prior marriage must be traced from the time of separation to the date of the insured's death. A presumption that the prior marriage terminated and the current marriage is valid applies only if "the whereabouts of the parties cannot be traced for the entire period in question, thus, making it impossible for all divorce records to be searched." POMS GN ATL00305.030. See also POMS GN 00305.040 Development - Presumption of Validity of Last Marriage (stating that if the information obtained covers all of the involved parties' places of residence from the date of separation until death and the evidence shows the marriage did not terminate, presumption of validity of last marriage cannot be applied).

CONCLUSION

The evidence is insufficient to conclude that the presumption of validity of the second marriage has been overcome for the various reasons set forth above. These include the limitations on the search of the divorce records of the Commonwealth of Virginia, the need for a more detailed tracing of the various places that the Number Holder resided, and the indication that he lived in North Carolina for at least some period of time after separation from May Queen so as to warrant a search of the divorce records of North Carolina. Additional development of the record is recommended. We recommend that the divorce records of the Commonwealth of Virginia as well as the State of North Carolina be searched from 1964 through 1995, the year in which the Number Holder died, under all name variations used by May Queen and the Number Holder; we also recommend that a more comprehensive statement be obtained from May Queen and from Mary Marie as to all places in which the Number Holder lived or resided at any time during the same period. We also confirm that we assume that the Agency has a death certificate showing the date of death of the Number Holder as well as his residence at the time of death and his place of death. If on and after further development of the record as recommended, the divorce records of the Commonwealth of Virginia and the State of North Carolina show that no divorce was granted in dissolution of the marriage of May Queen and the Number Holder in those jurisdictions and there is no indication that the Number Holder resided in any other state, it is most likely that the marriage of the Number Holder and Mary Marie would be invalid under the law of Virginia.

Michael M~

Regional Chief Counsel
By:___________________________
Margaret M~
Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1505110052
PR 05110.052 - Virginia - 08/03/2007
Batch run: 01/27/2009
Rev:08/03/2007