PR 05205.031 Nevada

A. PR 04-076 OPINION: Validity of Underage Marriage Teresa C~, SSN ~

DATE: December 30, 2003

1. SYLLABUS

Because the claimant took no legal action to void her underage marriage within one year after her 18th birthday, the marriage was valid thereafter, and did not end until the other party to the marriage died.

2. OPINION

QUESTION

You requested an opinion as to whether a marriage was void or voidable under Nevada state law, where Claimant was married when she was seventeen years of age, had no parental consent, and misrepresented her age as eighteen to the marriage officiant.

ANSWER

Because Claimant took no legal action to void the marriage within one year after her eighteenth birthday, the marriage was neither void nor voidable thereafter and did not end until the other party to the marriage died in 2000.

SUMMARY OF EVIDENCE

Claimant was born on July 23, 1963. On April 20, 1981, when she was seventeen years old, Claimant married Dennis K~ in Las Vegas, Nevada, after a two-day stay in Nevada. At the time, Claimant was a resident of Newport, New Hampshire. Claimant told the marriage officiant that she was eighteen years old. She did not obtain parental consent prior to her marriage. According to Claimant, she returned to New Hampshire around the beginning of May 1981 and she never lived with Mr. K~ again. Claimant indicated that her last contact with Mr. K~ was two to three months after the Nevada marriage ceremony. Claimant stated that she was living with her parents on July 23, 1981, her eighteenth birthday.

On July 31, 1991, Claimant married Roger C~ (the wage earner), who died on September 8, 1994. They had one child. Claimant applied for mother's benefits on the wage earner's record, at which time she did not inform SSA of her marriage to Mr. K~. She received mother's benefits until she married Roderick ~ on August 28, 2000. This marriage ended in divorce on December 2, 2002, after which Claimant re-applied for mother's benefits in Vermont on the record of the wage earner. At the time of this application, Claimant informed SSA of her prior marriage to Mr. K~. Mr. K~ had died on May 13, 2000.

ANALYSIS

The power to regulate marriage is a sovereign function of the states. Salibury v. List, 501 F.Supp. 105, 107 (D.Nev. 1980). Under Nevada law, marriages are void ab initio (from the beginning) under only two circumstances: if the parties are closely related (nearer than second cousins) or if either of the parties is legally married to someone else. NEV.REV.STAT. §§ 122.020, 125.290.

Under Nevada law, a person who is at least sixteen years of age, but less then eighteen years of age, may marry if he or she obtains the consent of either parent or a legal guardian. NEV.REV.STAT. § 122.020. If the required consent is not obtained and the couple did not live together during the year after the underage party reaches the age of eighteen, the marriage is voidable during that year by the underage party who did not obtain the required consent. NEV.REV.STAT. § 125.320.2. This means that the marriage is not void but can be voided by a court order obtained by the underage party. NEV.REV.STAT § 125.320.1.

Because Claimant did not live with Mr. K~ after her eighteenth birthday, she could have annulled (voided) the marriage by initiating court action within the year after her eighteenth birthday. NEV.REV.STAT. § 125.320.2. It was Claimant, not Mr. K~, who had standing to initiate such action. Id. Claimant's misrepresentation of her age to the marriage officiant did not render her marriage to Mr. K~ void. Fitzpatrick v. Fitzpatrick, 6 Nev. 63 (1870) (lack of consent of parent or guardian did not invalidate underage marriage where the parties misrepresented their ages; an underage party may elect to void the marriage after he or she reaches the age of consent); see NEV.REV.STAT. § 122.200 (misrepresentation of age is a misdemeanor).

Under Nevada law, Claimant's marriage to Mr. K~ would have been void only if he were still legally married to someone else at the time of the marriage ceremony._11 Otherwise, the marriage was voidable for the one-year period referred to above. Since Claimant did not seek an annulment of the marriage during the year after her eighteenth birthday, the marriage was no longer voidable after the end of the year. NEV.REV.STAT. § 125.320. Claimant did not indicate that there was any action taken by Mr. K~ to annul or dissolve the marriage on some other grounds. Therefore, based on the facts presented to us, Claimant's marriage to Mr. K~ was valid until his death.

CONCLUSION

Claimant's marriage to Mr. K~ was not void and was voidable only within the year after her eighteenth birthday.

_11 You have not indicated that there is evidence that Mr. K~ was legally married to another at the time of his Nevada marriage to Claimant.


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PR 05205.031 - Nevada - 04/24/2008
Batch run: 01/27/2009
Rev:04/24/2008