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Am I The Legal Surviving Spouse/widow Of Deceased Disbled Vet?

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Guest Gail

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I need help. This is kinda confusing, but I will try to explain. I married my now deceased husband the first time while he was in the military, 02-12-1971. We lived in my home state of Georgia. He suffered from 100% disability for PTSD from Vietnam. Ok..we divorced from our cerimonial marriage of 2-12-1971 due to his constant infidelity. BUT.. PRIOR to the divorce hearing we had reconcilled and I obtained the divorce anyway, and on the day our divorce was final, we formed a common law marriage which in Georgia as it was prior to 01-97 it is legal, and there had to be a divorce to end it. We carried on our lives as the usual married couple would. Nothing changed. We lived as husband and wife, presented as husband and wife and we did everything as husband and wife. We met all the criteria for legal common law married couples.

In Mid 1982, he deserted me due to his infidelity, and when the affair ended, He went back to his home state of Wisconsin in August of 1982. He told me he would take care of the divorce up there. He kept in touch with me thru all these years, and assured me we were divorced and he would send me the papers, 'when he found his copy'. Meanwhile, he remarries 3 times in WI, and has 2 children by a second marriage in Wisconsin, and was 'married' to #3 up there when he died. I remarried because I was pregnant, divorced my child's father and remarried him again. I have been divorced for 13 years from my childs dad.

I found out since I had not heard from him for several months, from his mom in WI, that on 06-28-01 he passed away. I was grief stricken and still am. About a year or so after I found about his death, I was curious as to when he divorced me in WI. I had a record search done. HE NEVER DIVORCED ME FROM OUR LEGAL COMMON LAW MARRIAGE. This means that neither of us were free to enter into any kind of marriage due to the fact that we were still married to each other. My marriages are not valid nor was any of his.

This has turned my world, and my daughters upside down. His mom talked me into applying for DIC.

I have sent in statements from his dad, (now deceased), his mom and his sister, along with statements from my sisters and some of our friends verifying that we lived as husband and wife, held ourselves out to be husband and wife and presented ourselves as married in every way. I even sent a statement from the man that owned a house we rented while we were in the common law marriage. Needless to say I am having fits from the VA. I sent in all this in July 2004, and after being told they never received it, sent it again, and still was told they didn't have it, questioned any claim for I was to do, was told nothing and I don't know who read all the info I sent in, but you would think they got their info from a completely different source than what I said, and they denied my claim. I sent in a disagreement letter. I had to beg for the form 21-5 something, and sent it, they denied getting it..I have sent 3 and still don't know. The Atlanta VA office says they cannot help me for the VA represented the 'other wife' and told me to use the VSO office here in Gainesville, and I did, and called and told them I had signed the power of attorney, within the 60 day period they gave me. I want and need representation. NOW GET THIS...I called the VA back and they told me that the VSO could not represent me because it was a part of the VA that had represented the 'other wife'...WHAT DO I DO? I spoke with a Mr. Gilmer here that is head of some Viet Vet thing state wide, I think, I explained it all to him and he said I had a case, that I was still legally married to my dead husband until he died, and not to give up. I have heard nothing more, received no more forms, not any kind of help nothing, and the power of attorney was mailed this July. So, who am I? Common sense tells me I am his widow, and this mess is awful. I meet all the VA requirements for surviving spouse, and can even use the continous cohabitation requirement, as he deserted me due to infidelity and I had no part in the separation,

SO WHAT DO I DO? Is there anyone out here that can help me? I am disabled now, and the 'other wife' quit her job and is not working and has been living with another man since 3 months after the death of the veteran. HELP, please!!!! Is this clear to anyone out there? Seems I was an unwilling bigamist. I guess I should have pressed more for the papers or check for myself. The deceased was in the process of going to divorce the 'other wife' and move back to GA but he died before he could.

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Gail, I'm not sure this will be helpful, but thought I'd post it so you can see for yourself.

§ 103. Special provisions relating to marriages

Release date: 2005-10-11

(a) Whenever, in the consideration of any claim filed by a person as the widow or widower of a veteran for gratuitous death benefits under laws administered by the Secretary, it is established by evidence satisfactory to the Secretary that such person, without knowledge of any legal impediment, entered into a marriage with such veteran which, but for a legal impediment, would have been valid, and thereafter cohabited with the veteran for one year or more immediately before the veteran’s death, or for any period of time if a child was born of the purported marriage or was born to them before such marriage, the purported marriage shall be deemed to be a valid marriage, but only if no claim has been filed by a legal widow or widower of such veteran who is found to be entitled to such benefits. No duplicate payments shall be made by virtue of this subsection.

(;) Where a surviving spouse has been legally married to a veteran more than once, the date of original marriage will be used in determining whether the statutory requirement as to date of marriage has been met.

© In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.

(d)

(1) The remarriage of the surviving spouse of a veteran shall not bar the furnishing of benefits to such person as the surviving spouse of the veteran if the remarriage is void, or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines that the annulment was secured through fraud by either party or collusion.

(2)

(A) The remarriage of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran if the remarriage has been terminated by death or divorce unless the Secretary determines that the divorce was secured through fraud or collusion.

(:) The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran. Notwithstanding the previous sentence, the remarriage after age 55 of the surviving spouse of a veteran shall not bar the furnishing of benefits under section 1781 of this title to such person as the surviving spouse of the veteran.

(3) If the surviving spouse of a veteran ceases living with another person and holding himself or herself out openly to the public as that person’s spouse, the bar to granting that person benefits as the surviving spouse of the veteran shall not apply in the case of the benefits specified in paragraph (5).

(4) The first month of eligibility for benefits for a surviving spouse by reason of paragraph (2)(A) or (3) shall be the month after—

(A) the month of the termination of such remarriage, in the case of a surviving spouse described in paragraph (2)(A); or

(:) the month of the cessation described in paragraph (3), in the case of a surviving spouse described in that paragraph.

(5) Paragraphs (2)(A) and (3) apply with respect to benefits under the following provisions of this title:

(A) Section 1311, relating to dependency and indemnity compensation.

(B) Section 1781, relating to medical care for survivors and dependents of certain veterans.

© Chapter 35, relating to educational assistance.

(D) Chapter 37, relating to housing loans.

(e) The marriage of a child of a veteran shall not bar recognition of such child as the child of the veteran for benefit purposes if the marriage is void, or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines that the annulment was secured through fraud by either party or collusion.

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Yes, as I stated he was getting benefits at 100% for severe PTSD. I know he would never get treatment until he was back in WI, and had entered into his 1st invalid marriage in Wisconsin. He had been 100% for many years.

I knew the marriage thing would be confusing but here it is:

Our first marriage for each was together while he was still in the military on 02-12-1971.

In July of 1978 I filed for a divorce due to his inifdelity. We reconcilled and were living together still married but I went thru with the divorce, and he never went to the hearing. But our divorce, even tho we were still living as man and wife was final 09-08-1978. When we received the final divorce decree, we were living as man and wife, we formed a common law marriage on the day our ceremonial marriage was ended by divorce. We agreed to do so, lived as husband and wife, presented as such, and our life continued as a married couple. We were legally married, common law in the state of GA where we lived.

There was never a divorce from this common law marriage, as you have to have a legal divorce to dissolve a common law marriage. This is where it comes in that he told me thru the years that he had taken care of it up in WI, and all the rest is stated in the other post.

As our common law marriage to each other which would be our 2nd marriage to each other, was never legally ended, neither of us could legally marry anyone else as we were still married to each other. There was never a divorce to end our common law marriage as he said there was, so that left us married until he died. Right?

I stated he married 3 more women in WI, and had children by the 2nd one he married in WI, and he was living with and going to divorce #3 in WI when he died. From what I can figure out by trying to research this and all, NONE of his Marriages in Wisconsin were valid due to the fact he was still married to me. This also made my marriages (I married my childs father 2 times and now have been divorced from him for 13 years)

VOID also, as I was still unknowingly married to My common law husband who was both my first and second husband...and legally my last husband. As this is the situation of no divorce from me, I would say that I am his legal widow and his legal surviving spouse.

Did I explain it any better? As no divorce was issued to end the legal common law marriaged between the now deceased veteran and myself , that leaves me his widow and in a mess. What I am saying is that because the deceased and I never divorced (as he convinced me we had) that no marriages either one of us had were valid, as we were still married up until his death.

As I stated, I obtained statements from 3 members of his family, who certainlly have nothing to gain in this

matter, and the rest is also in the first statement. This really has me messed up, not to mention my daughter, who now, as I was not legally married to her father makes her an out of wedlock child. This is a mess and the Mr. Gilmer told me that the VA wants everybody to just give up and throw their hands up and stop is why they put anyone thru the wringer.

Does anyone have any advise about the representation I would be able to get. I know better to 'go to a gun fight with a squirt gun' or to try and battle with the VA myself. I have read everything about this in the 38 CFR and the M21, and from the understanding I get, I am right, but I don't know.

This is a very complex issue, but it really comes down to a promise he made me make to him. He made me promise when he died, he would be laid to rest in a War Memorial Cemetary, for he fought for that right. He was 101st Airborne/1st Calvary in Nam. Now he is cremated in a closet. My heart breaks for him.

Did I do better?

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Gail,

Please ignore the smilies in the text that I posted here--if you can see them. I didn't put them there purposely. I don't know why, but they just show up on some of my posts. They are random and could be offensive, but that is not intended. I think it has to do with the original text and whether it triggers "hot key" type placement of the smilies.

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Thank you Morgan. I had read all of that in the 38CFR or m21 and I dont' understand the part of the deemed valid marriage, even tho their marriage was not valid, and then when it said " but only if no claim has been filed by a legal widow or widower of such veteran who is found to be entitled to such benefits"

because I now am filing as the legal widow.

The part about the laws where the marriage took place, Georgia, legal common law marriages could be formed before 1-97, if formed prior to that date, it is legal and must be dissolved by divorce. He was in WI at the time of his death, and from what I have understood, if a marriage is recognized as legal in the state in which it was formed, it is accepted as being legal in any state, even if they do not allow the formation of common law marriages.

Now, I have filed as the legal widow and I am in a quandry about that part and all of it.

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Here's more that might help. Of course, this case isn't exactly like yours but maybe you can glean something from it. I'll keep posting if I see anything else.

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 93-328 ACTIVITY: AUTHORIZATION

NAME: Sanders v. Brown

ISSUE(S): Divorce

ACTION BY COURT: Remand DECISION DATE: 11/3/93

BEFORE JUDGES: Kramer, Farley, and Mankin

Significant Point(s): Pursuant to 38 CFR 3.1(j), the validity of the marriage is to be determined by applying "the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued."

Facts: The veteran married Dorothy Sanders in February 1950. He married the appellant, Irene Sanders, in November 1967. The veteran divorced Dorothy in Illinois in March 1970. Irene and the veteran went through a second marriage ceremony in June 1973 because the veteran had been still married to Dorothy in 1967. Irene and the veteran were divorced in February 1979 in Illinois. The divorce decree stated that the marriage took place in 1967, but made no mention of the 1973 marriage. At the time of his death in September 1988, the veteran apparently resided in Missouri and Irene apparently resided in Illinois. In its opinion, BVA stated that the 1979 divorce decree terminated the existing marriage between the parties, regardless of whether the marriage was entered into in 1967 or 1973.

Court Analysis: The determination whether the appellant was the veteran's lawful spouse for the purposes of receiving death benefits depends upon whether she had an existing valid marriage to the veteran at the time of his death. The validity of the marriage is to be determined by applying "the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued." While common sense would seem to dictate that the former test would be applicable where the question was the validity of the inception of the marriage, and the latter would apply where the question was the validity of the termination of the marriage, the regulation does not specifically so state. Under the regulation, the places of the residence of the veteran and the veteran's spouse at the time of the veteran's death may be critical. The determination of whether there was an existing valid marriage at time of death is a question of fact that the Court must address. Because the BVA decision does not cite to the law of any particular state or provide any reasons or bases for the law chosen or not chosen, there is no basis for the Court to determine whether BVA's finding is clearly erroneous. On remand, BVA is directed to address whether, under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued, the 1979 divorce decree terminated the 1973 marriage.

SERVICE ANALYSIS: Adjudication Divisions maintain a file of relevant District Counsel and General Counsel decisions which can be utilized in cases where the situation is identical or the circumstances involved are on "all fours" with a District Counsel or General Counsel opinion involving marital relationship questions. M21-1, Part IV, para 12.02b requires referrals to District Counsel for opinions on legal issues if a previous opinion is not on "all fours". Although the application of state law to marital relationship questions is not specifically included in the list of types of questions to be referred, the citation adequately covers this situation. Other manual provisions require citation of all relevant facts which would include District Counsel opinions in administrative decisions. (See M21-1, Part IV, para 11.30) Although the Court commented on a perceived inadequacy of 38 CFR 3.1(j), the regualtion is adequate.

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This might apply to the woman he was married to/seeking divorce from at the time of his death.

You might want to go here and read more of the cases. I searched "marriage" and tons of cases came up. Should keep you busy reading for a while. Don't think you are alone in trying to untangled this kind of complex situation. I am sorry to hear about the loss of your husband--and one of our country's vets.

http://www.warms.vba.va.gov/

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 93-1069 ACTIVITY: AUTHORIZATION

NAME: Dedicatoria v. Brown

ISSUE(S): Deemed valid marriage; Status of claimant

ACTION BY COURT: Affirmance DECISION DATE: 12-19-95

BEFORE JUDGES: Nebeker, Kramer, Mankin

FACTS: The veteran, Mr. Teodulfo Dedicatoria, died on May 9, 1990. Subsequently, Merlina B. Dedicatoria filed a claim for Dependency and Indemnity Compensation (DIC) as his surviving spouse. The record shows that Mr. Dedicatoria was previously married to Rizalina Fallorin until her death in January 1987. He and the claimant married in May 1987. Through processing Mrs. Dedicatoria's DIC claim, however, we learned that at the time of her marriage to Mr. Dedicatoria, she was already married to Uldarico Paramo and she was not legally separated from him. In testimony presented in support of her claim, Mrs. Dedicatoria in essence indicated that she thought her marriage to Mr. Paramo was null and void because he had been absent for seven years and was presumed dead. She further testified that she felt free to marry the veteran because her first spouse, Mr. Paramo, had remarried in 1982.

ANALYSIS: The Court affirmed the BVA's decision that Mrs. Dedicatoria's marriage to the veteran was invalid for the purpose of her being recognized as the veteran's surviving spouse for VA benefits purposes. The Court's conclusion follows applicable statute and regulation that the legal existence of a marriage for VA purposes is governed by "the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the rights to benefits accrued." The veteran and Mrs. Dedicatoria were married in the Philippines and under Philippine law, a marriage entered into by a person who is already married is void unless the first spouse has been absent for seven years without news of the absentee or is presumed dead. In view of

Mrs. Dedicatoria's statement that she knew of Mr. Paramo's remarriage in 1982, the evidence reflected that Mr. Paramo's absence was not unexplained. Therefore the attempted marriage between the veteran and the claimant was void under Philippine law.

Further, Mrs. Dedicatoria's marriage to the veteran could not be deemed valid under 38 U.S.C. 103(a) and 38 C.F.R. § 3.52 because the evidence did not show that she was without knowledge of a legal impediment to the marriage. Since Mrs. Dedicatoria did not provide evidence that her marriage to the veteran was valid under Philippine law and her marriage to the veteran was not deemed valid, she has not met the threshold requirement of obtaining claimant status.

RECOMMENDED VBA ACTION(S): None. No change is needed to regulations, procedures or policies as a result of this decision.

ACTION BY DIRECTOR, C&P SERVICE:

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