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

[Guest Gail]

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.

[timetowinarace]

If you meet the guidelines for common law marraige in your state and it was never annulled or divorced there is no other legal widow. That is all you have to prove. They will have to prove a divorce occured in order for any other marraige to be legall. Prove this and the current listed widow does not meet VA regulations to receive bennifits. Then you do meet requirements. To make it simple, and I hate to put it this way, you have to go after the current listed widows marraige licence. If it is illegall, take it away, problem solved. It's mean, but that is the way the law works. Then go to the VA. The VA isn't going to do this for you.

Time

Edited November 16, 2005 by timetowinarace

[robert51]

Gail

Sorry to hear about your plight in this, but if you do not have a order from a court showing that you are his Widow, you are beating a dead horse with the VA.

Even if you have one, this still may not entitle you to DIC.

I wish you luck, as you are fighting an uphill battle, without the ammo that you need.

I have to agree i mean to me it seems they both parted ways she went on to remarry and have children and he did the same years pass and now that he is dead everyone is scrambling around trying to be the one entitled? reminds me of something i read in Florida a guy died when a building he was working on fell . Seems he was living with a women and had a baby with her but his X who filed for divorce against him and lived with another guy found out he had this accident and she rushed to Florida and stoped the divorce on the very last day it was to become final and then the X (Who claimed to be the greiving widow rushed to settle the death with the insurance company leaving nothing for the guys live in and baby. After getting the money the X refiled the divorce and went back to her boyfriend and they enjoyed the settlement ...So Gail tell me what about his children are you going to give some of this entitlement to his children with the wife in Nebraska if you legally find a way to get the DIC or just go home and forget about the children you X had I am sorry if this upsets you but i personally think as adults we all have a live with our mistakes and while life can be rough its Never as bad as it is on the children . Let me ask you gail do you need the DIC or just feel its your right and want everyone to know you were taken advantage of by your X .. Like 10thFO i think when you remarried and had another child that showed me you moved on with your life. And you x did the same its not like he left and you stayed single and alone hoping your true love would come home to you . Both of you made mistakes and better to dwell on a better furture then live in a broken past.

[Guest Gail]

To Robert: I find it very hard to understand what you are trying to say. That situation and my situation are like comparing apples and oranges, but if you think they are the same, you are allowed to do so.

As for your statement of 'every body scrambling around" don't include me in that.

His children? Hmmm seems like they have been left out ever since their father passed away. The only thing they received was his SS...they got NO VA...so I guess someone forgot them, wouldn't you say? When I inquired to the VA in converation about the children and asked why they had not received any of the benefits from their dad, Iwas told that the mother of the children who had custody would have had to filed, not the woman who is receiving the benefits. What do you have to say about that one? My opinion of that is the mother never investigated the rights of the children to receive from the VA or the one getting the benefit just might be getting theirs too..if possible...I can't say because I don't know that. But when it comes to dependant children, they are entitled and should receive any benefit from the death of the father that was obtainable for them. Why would she 'refile for divorce' on a dead man? My friend, something is not right here. You cannot divorce a dead man. The marriage would be ended at his death..I would assume that since no divorce had been granted prior to his death, irregardless of the fact that they remained married and 'living with other persons' that they were still married upon the date of his death.

His children, in that situation, well, he was not married to the mother of his children..nor divorced from his wife, I can say that from what I researched in GA for my friends daughter who had a baby by her boyfriend, and he signed the birth certificate, admitting paternity, he had no legal right to the child except pay child support, the child would have to have been legitimized legally by him, if I remember for it to even receive his social security upon his death. You have me confused with whose children belong to who. If they belonged to the woman the man was just living with, and not married to or to his wife that was living with someone else. As it stands in all states, I think I have researched this part on my account. You cannot legally be married to another person, or enter into a legal marriage if you have a living spouse and are not divorced from that spouse. So if it was kids with his girlfriend, she was not his wife, as he was still married to the other woman, but died in the process before it was final. So, the first one was the legal wife. He could not have been married to the one he was living with and she be his legal wife...can you understand cause you have me confused. It is kinda like being pregnant, either you are or you are not, either you are divorced from someone before you remarry, or you are not married to the last one.

His children, in my case, the one he had with invalid wife #2, are now past the age to receive anything. If in the case you have me confused about, if the wife that was divorcing him was the beneficiary to his insurance, then she had no legal reason to share the insurance with anyone.

In my situation, I think the children's mother should have been more diligent and investigative about the rights of the children and if they should have received them, then she should have fought for them.

I repeat, you have me confused with your statement.

Yes, we all make mistakes, and believe me, I know how hard it is on the children, as I had to fight for every penny of child support for my child from her dad who didn't seem to think he was going to pay it. But, I saw to it that he did.

In reply to your question, do I need the DIC or want it for spite....well, seems like the one who gets it quit working to be within income limits and lives with a man who makes quiet well, so what you think of that?

I myself was have just won my claim for my SSD that I had been waiting for 3 years on. I didn't quit working so I would have no income, I was 'fired by my body and health', and would much rather be well enough to be able to work rather than now having to subsist on $770 per month. Anyone with common sense would want to be able to work. I have always worked 2 jobs all the time to raise my child and unfortunately cannot help what happened healthwise to me. See, you dont know what road I am travelling.

You read the statement wrong...I had a child and married her father. This does not mean I moved on, this means that it ligitimated my child in the eyes of the law. I can understand why you think I moved on, but I didnt. I have been divorced for 13 years, and you can not insinuate anything into what type of relationship existed anywhere or for what reasons. I hope you understand what I am telling you. Yes, we, as do everyone else, made mistakes. My biggest mistake was being naieve and not finding out the real truth, and his mistake was lying to me, and both of our mistakes were not staying together in the first place, as neither of us ever let go of the other. So there. Did I answer this in a way you could understand, as I was totally confused about the other couple.

[Guest Gail]

To Time:

You are right in what you say. Anyone can search anywhere, here or there and not find a divorce on record for our common law marriage, for there is not one. Our common law marriage was never ended. That is why I was told to get the statements and I did, and obtained the ones from his family members as I did.

Sure, he and #3 in WI had a marriage license just as with #1, & #2 up there, but because I am alive and kicking and we were still legally married, they are invalid; void, because you either have to have a common law marriage ended by divorce, annullment, or death, or you are still legally married. His other nor my other marriages were valid due to this. I have provided the VA with all they requested, and meet the guidelines for my marriage to be accepted according to their rules. I have researched endless hours,

but I still need help.

Thanks

[carlie]

INTERNET INFORMATION :

Common Law Marriage

Prior the advent of modern domestic relations statutes, parties became married by a variety of means that developed from ancient custom. These became the elements of a "common-law marriage," or one that arose by operation of law through the parties' conduct, rather than pursuant to a ceremony. In many ways, the theory of common-law marriage is one of estoppel - that parties who have themselves told the world they are married should not be heard to claim that they are not married in a dispute between the parties themselves.

Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990). Common-law marriages were recognized in some of the colonies prior to independence, and in many states after independence.

Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas and the District of Columbia; see notes below re Utah and Pennsylvania) recognize common-law marriages contracted within their borders. See, Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960); IOWA CODE ANN. §. 595.11 (West 1981); MONT. CODE ANN. § 26-1-602, 40-1-403 (1985); OKLA.STAT. ANN. tit. 43, § 1 (West 1979); TEX. FAM. CODE ANN. § 191 (Vernon 1975).

New Hampshire has a limited form of common law marriage effective only at death. See N.H. REV. STAT. ANN. § 457:39 (1983).

Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).

Texas calls it an "informal marriage," rather than a common-law marriage. Under § 1.91 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. The 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

In Utah (UTAH CODE ANN.§ 30-1-4.5), a marriage which is not conventionally solemnized is valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (:) are legally capable of entering a solemnized marriage; © have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.

The Pennsylvania Commonwealth Court apparently abolished common-law marriage in that state in PNC Bank Corp. v. Workers Comp. Bd. (Stamos), 860 CD 2002 (Sep. 17, 2003). It is unclear whether that decision will withstand appellate scrutiny and to what extent it is retroactive.

Most states have abolished common-law marriage by statute. Common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. See, e.g., CAL. CIV. CODE § 4100 (West 1983); N.Y. DOM. REL. LAW § 11 (McKinney 1988 & Supp. 1992); Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910); Ira M. Ellman et al., Family Law: Cases, Text, and Problems 21 (1986). Idaho abolished common-law marriage effective 1/1/96 but legalized such marriages concluded prior thereto. Idaho Code § 32-201 (1998). Georgia repealed its common-law marriage statute, GA. CODE ANN. §§ 19-3-1 and 19-3-1.1, which voids any common law marriage purported to have been contracted on or after 1/1/97.

Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. That means that mere cohabitation can never, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.

While it is presently only possible to conclude a common-law marriage in a limited number of jurisdictions, it was formerly much more widely possible. Many valuable estate rights today continue to depend the right to inherit through a common-law marriage concluded in the past in a state which subsequently abolished common-law marriage. The relevant laws of those states that have abolished common-law marriage are prospective in application, which means that common-law marriages contracted prior to the effective date of the statutes are valid.

Remember that the United States Constitution requires every state to accord "Full Faith and Credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.

There may be bizarre consequences of such a rule. For example, suppose an unmarried couple from New York City makes a weekend outing to one of those hotels with the heart-shaped bathtubs in the Poconos. (Assume for purposes of this example that the former [i.e., pre-9/17/03] common-law marriage law of Pennsylvania was in effect.) They register as "Mr. and Mrs." They have just, possibly inadvertently, satisfied at least one portion of the evidentiary requirements for a common-law marriage in Pennsylvania (cohabitation and "holding out") and may have created a legitimate question regarding whether they are married when they return to New York. In they event of a dispute between them in New York after they return, a New York court must apply the laws of Pennsylvania to determine the validity of a common-law marriage purportedly contracted in Pennsylvania. (Pennsylvania law, while recognizing common-law marriages, does not allow such marriages to arise through inadvertence.)

There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they are married and can only be divorced by appropriate means in the place where the divorce is granted. That means, in all 50 states of the United States, only by a court order.

Because the law of marriage and divorce varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

About Hilary B. Miller, Esq.

(Note: please do not send e-mail to seek free advice about common-law marriage. A response regarding any particular situation can only be made to a person who has a formal attorney-client relationship with this office. If you would like to arrange a consultation on a paid professional basis only, please use the above e-mail address. Our office is not, in any event, able to answer legal questions regarding the laws of any states other than Connecticut or New York.)

[Guest Jim S.]

Gail is correct in one respect, you will have to have a legal decision on your marriage rites in the state where you claim your common law marriage was recognized, and a seperate legal decision that will show that you are considered the lagitament wife at the time of his death.

This envolves two seperate legal jurisdictions and you will have to show in the court that you are still legaly married to the descease. If you are or have married with someone without a legal devorce, regardless of your belief in having a legal devorce, you yourself may be liable to legal action for bigamy as well. I am wondering how you were able to inter into another marriage without a divoce decree in your pocession or on file with the marriage license dept. of your state. My understanding of a devorce decree to be addressed as final, both parties must sign off on the decree, or their must be an attempt to locate the missing party in and around their last know address, posting in a number Newspapers in and around the area.

This is only for your benefit, by attempting to be considered the legal wife, you are opening yourself to the same error that your common law husband had done, getting married without a legal devorce, from a devorce court and filed with the state, before intering into another marriage. Your belief that your common law husband filed for devorce and was given souch a devorce decree might mitigate penalties against you, but do not release you of any responsibilites according to the laws on marriage.

To get the VA to recognise you as the legal wife, you must have these legal determinations made, to show your legal standing in the matter of any VA benefits that may be avialable to you, should you then go on to show that he died of a service connected disease and/or injury.

Letting sleeping dogs lie as some have suggested, may not be the way to go either. A legal opinon and decree may well be you best course of action, because the woman who intered into a marriage with your common law husband may bring about her own legal action in reply to yours.

I wish to well and good luck in whatever you may decide.

Jim S.