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.