Based on the information provided, it appears that the marriage between the Claimant and the Number Holder (NH), was not dissolved by divorce, thereby rendering the Number Holder’s subsequent marriage invalid under Virginia law. We believe that the Claimant has presented strong evidence to overcome the presumption of validity of the last marriage and, therefore, should be awarded widow’s benefits on the record of the Number Holder.

QUESTION PRESENTED

Does Virginia follow the presumption of validity of the last marriage and, if so, would the presumption preclude R~ from entitlement to widow’s benefits?

SUMMARY

In Virginia, there is a strong, but rebuttable, presumption of validity of the last marriage. Based on the information provided, it appears that the marriage between R~ and the Number Holder, W~, was not dissolved by divorce, thereby rendering the Number Holder’s subsequent marriage to J~ invalid under Virginia law. We believe that R~ has presented strong evidence to overcome the presumption of validity of the last marriage and, therefore, should be awarded widow’s benefits on the record of the Number Holder.

BACKGROUND

1. R~

According to the documentation you provided, the Number Holder married R~ in South Carolina on August XX, 1978. They had one daughter, T~. The Number Holder and R~ lived together in Germany until the Number Holder left Germany sometime in 1983 to move to New Jersey. On July x, 1983, the Number Holder provided R~ with separation agreement paperwork, but R~ alleges that she did not sign the paperwork. R~ provided a copy of the separation agreement paperwork to the Department of Veterans Affairs (VA) in September 2013, but it is not included in the documentation provided to us.

In March 1984, R~ tried to obtain child support from the Number Holder with the assistance of military counsel. The child support request letter stated that R~ had been separated from the Number Holder since May 1983. The letter refers to the Number Holder as R~ husband.

On August XX, 1984, the Number Holder signed an application for a Uniformed Services Identification and Privilege Card on R~ behalf. On the application, the Number Holder indicated that his marital status was “married” and that the lawful marriage to his spouse took place in Columbia, South Carolina in August 1978. In support of the application, the Number Holder presented a copy of his marriage certificate.

In October 1989, R~ and T~ were approved for Uniformed Services Identification cards and Defense Enrollment Eligibility Reporting System (DEERS) enrollment as the dependents of the Number Holder. It was noted on the form that the documents viewed and verified for dependency included a marriage certificate and a birth certificate. In 1991, however, the Number Holder completed an identification/DEERS enrollment application on which he identified no dependents. In January 2013, R~ applied for an identification card/DEERS enrollment as the dependent of the Number Holder. In addition, the documentation provided to SSA includes a copy of R~ current United States Uniformed Services Identification and Privilege card, issued in October 2018, which identifies the Number Holder as her sponsor.

The documents provided further show that R~ and T~ have both stated on multiple occasions, including in sworn statements, that there is no record of a divorce decree between R~ and the Number Holder. T~reported that she conducted a search for the divorce decree but could not find one (the jurisdictions in which T~ conducted the search are not identified). R~ provided to the VA a statement from a German Marriage Court, which confirmed that there is no divorce decree in Germany. The documentation provided to SSA includes a certificate of residency from the Office of Public Order and Vital Statistics Citizen Bureau of Esslingen, Germany, dated February X, 2013, which states that R~ family status is “married/ since XX August 1978.”[^[1] ] R~ also provided to the VA a statement from the Commonwealth of Virginia stating that no divorce was found between the Number Holder and R~ from 1978 through December 2013. This document was not provided to us.

According to SSA records, in February 2018, R~ was awarded uninsured spousal Medicare as the surviving spouse of the Number Holder in Germany.

In May 2019, R~ was awarded dependency and indemnity compensation (DIC) from the VA as the surviving spouse of the Number Holder. According to the VA decision, the VA determined that (1) the marriage between the Number Holder and R~ was not terminated prior to the Number Holder’s death, (2) the marriage between the Number Holder and J~ was not considered valid since the Number Holder was not free to marry, and (3) J~ was not entitled to DIC benefits.[ ^[2] ]

R~ is currently seeking widow’s benefits on the Number Holder’s record based on an application filed in December 2018.

2. J~ H~

On September xx, 1988, the Number Holder married J~ in Georgia. On the signed marriage license application, the Number Holder stated that he had divorced R~ in Germany in 1981 (two years before he presented R~ with separation agreement paperwork).[ ^[3] ] J~ reported to SSA that she and the Number Holder had a copy of the Number Holder’s divorce decree from R~ at the time of their marriage, which they presented to the state of Georgia, but she no longer had a copy.

In statements to SSA, J~ reported that the Number Holder lived in New Jersey, South Carolina, and Georgia. She lived with the Number Holder in Georgia after they got married in 1988. In 2002, they moved to Virginia. J~ reported that she did not know where the Number Holder and R~ lived when their divorce was finalized, but she knew they lived in Germany in 1981 and 1982. She further stated that she conducted a search for the Number Holder and R~ divorce decree in New Jersey, South Carolina, and Georgia, but could not find a copy. According to VA documentation, J~ did not provide a copy of the divorce decree to the VA.

The Number Holder died in Virginia on November XX, 2004. J~ is listed as the Number Holder’s surviving spouse on his death certificate. In 2004, J~ was awarded surviving spousal and DIC benefits.

DISCUSSION

1. The Applicable Federal Regulations

The federal regulations 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. 20 C.F.R.§ 404.345

2. Virginia Law

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 177 (1965); Parker v. American Lumbar Corp., 56 S.E.2d 214, 216 (Va. 1949).

A party may overcome the presumption of validity of the last marriage by presenting evidence of “invalidating facts.” Cason v. Cason, No. 179775, 2001 WL 1830006, at *5 (Va. Cir. Ct. Oct. 16, 2001) (citing Parker v. American Lumber Corp.). The 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 Co., 490 F.Supp. at 1362. It is not incumbent upon the party seeking to overcome the presumption of the validity of the last marriage to document the absence of a divorce in every jurisdiction where one could have been obtained. Id. at 1364. “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.

3. The Evidence Presented Strongly Indicates that the Marriage Between the Number Holder and R~ Was Not Terminated By Divorce and, Therefore, the Marriage Between the Number Holder and J~ Was Invalid Under Virginia Law.

The information provided strongly indicates that the marriage between the Number Holder and R~ had not been terminated by divorce when the Number Holder married J~. Under Virginia law, the Number Holder’s marriage to J~ therefore would be considered invalid. Va. Code Ann. §§ 20-38.1(a)(1); 20-43; 20-45.1(a).

The evidence provided to date shows that (1) R~ allegedly did not sign the separation agreement paperwork presented to her by the Number Holder in July 1983, and she provided a copy of the separation agreement paperwork to the VA in September 2013; (2) in March 1984, R~ tried to secure child support from the Number Holder, whom she identified as her husband; (3) in August 1984, the Number Holder signed an application to obtain identification for R~ on which he indicated that he was married to R~ and provided a copy of his marriage certificate as proof; (4) in 1989, R~ and T~ received Uniformed Services Identification cards and DEERS enrollment under the sponsorship of the Number Holder; (5) a February 2013 German certificate of residency indicated that R~ family status was “married/ since XX August 1978”, the date of her marriage to the Number Holder; (6) R~ has a current United States Uniformed Services Identification and Privilege card, which was issued in October 2018, that identifies the Number Holder as her sponsor; (7) R~ and T~ have maintained in sworn statements that R~ and the Number Holder were never divorced; (8) R~ provided documentation to the VA showing that Germany and Virginia have no record of a divorce decree; (9) J~ stated that she searched for the divorce decree in New Jersey, South Carolina, and Georgia, but could not find a copy; (11) the VA stated that J~ was unable to provide a copy of the divorce decree; and (12) R~ was awarded uninsured spousal Medicare and DIC benefits as the surviving spouse of the Number Holder.

By contrast, the information provided to date contains only some limited contrary evidence. For example, the Number Holder indicated on his signed marriage license application that he had divorced R~ in Germany in 1981. However, the alleged 1981 divorce date predates his presentation of separation papers to R~ by two years. Also, J~claimed to SSA that she once had a copy of R~ and the Number Holder’s divorce decree, which they presented to the state of Georgia when they got married, but she could not provide it to either the VA or SSA. Further, although the Number Holder completed an application in 1991 on which he identified no dependents, R~ subsequently was issued a military identification card under the Number Holder’s sponsorship. Finally, even though J~ is listed as the Number Holder’s surviving spouse on his death certificate and was awarded surviving spousal and DIC benefits under his record, we do not believe these facts, standing alone, outweigh all of the overwhelming evidence described above. Accordingly, we believe that the totality of the evidence strongly indicates that the marriage between the Number Holder and R~ had not been terminated by divorce when the Number Holder married J~.

4. The Evidence Presented Strongly Suggests That the Presumption of Validity of the Last Marriage Has Been Rebutted.

Based on the evidence provided, we believe that the presumption of validity of the last marriage has been rebutted given the ample evidence of “invalidating facts” presented by Renate. Cason v. Cason, No. 179775, 2001 WL 1830006, at *5. In particular, it appears that R~ never remarried; she has continually held herself out to be married to the Number Holder up and until the time of his death; R~ and T~ have maintained in sworn statements that R~ and the Number Holder were never divorced; the military has continuously recognized R~ as the Number Holder’s dependent; a divorce decree between R~ and the Number Holder has not been located or provided to SSA; and the VA has awarded R~ DIC benefits as the Number Holder’s surviving spouse. We believe a reviewing court would find that all of these facts, when viewed as a whole, provide sufficient support to conclude R~ has successfully rebutted the presumption of validity of the last marriage. SeeCason, 2001 WL 183006, at *5 (finding presumption overcome where, in part, wife never remarried, continually held herself out to be married until the husband’s death, the husband represented himself as her husband on a loan application, and no valid court order dissolved the marriage).

Moreover, under the POMS, the presumption of validity of the last marriage should not be applied 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. See POMS GN 00305.040 (Development – Presumption of Validity of Last Marriage); POMS GN ATL00305.0305(E) (Presumption of Validity of Last Marriage (PVLM)) (stating that PVLM may be rebutted when the whereabouts of the parties to a prior marriage have been determined, but a search of divorce records of those jurisdictions fails to reveal evidence of termination).

Here, the evidence presented shows that the Number Holder’s places of residence were Germany, New Jersey, South Carolina, Georgia, and Virginia. No evidence suggests that the Number Holder’s whereabouts during the relevant period were unknown. According to statements made by R~ ,T~, and J~, the divorce decree could not be located when they conducted searches in all of the jurisdictions where the Number Holder lived. Moreover, R~ provided to SSA a certificate of residency from the Office of Public Order and Vital Statistics Citizen Bureau of Esslingen, Germany, dated February X, 2013, which states that R~ family status is “married/ since XX August 1978.” And, although not provided to SSA, documentation from the VA confirms that R~ provided the following documentary proof to the VA: (1) a statement from a German Marriage Court indicating there is no divorce decree in Germany and (2) a statement from the Commonwealth of Virginia stating that no divorce was found between the Number Holder and R~ from 1978 through December 2013. Based on this information, we believe the presumption of validity of the last marriage has been rebutted because the whereabouts of the Number Holder are known and there are no divorce records in the relevant jurisdictions where he lived.[ ^[4] ]

Conclusion

For the reasons stated above, we believe that R~ has overcome the strong, but rebuttable, presumption of validity of the last marriage that applies in Virginia and, therefore, would be entitled to widow’s benefits under Number Holder’s record.

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.

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