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.

[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.

[carlie]

TITLE 38 - VETERANS' BENEFITS

PART I - GENERAL PROVISIONS

CHAPTER 1 - GENERAL

-HEAD-

Sec. 101. Definitions

-STATUTE-

For the purposes of this title -

(1) The terms "Secretary" and "Department" mean the Secretary of

Veterans Affairs and the Department of Veterans Affairs,

respectively.

(2) The term "veteran" means a person who served in the active

military, naval, or air service, and who was discharged or released

therefrom under conditions other than dishonorable.

(3) The term "surviving spouse" means (except for purposes of

chapter 19 of this title) a person of the opposite sex who was the

spouse of a veteran at the time of the veteran's death, and who

lived with the veteran continuously from the date of marriage to

the date of the veteran's death (except where there was a

separation which was due to the misconduct of, or procured by, the

veteran without the fault of the spouse) and who has not remarried

or (in cases not involving remarriage) has not since the death of

the veteran, and after September 19, 1962, lived with another

person and held himself or herself out openly to the public to be

the spouse of such other person.

[carlie]

Gail,

I'm not sure if I've retained everything concerning your posts and situation

but have formed 3 questions so far.

1) The 100% service connected veteran, your husband, is this right ?

2) Have you been (or was he getting ) spousal payment from the VA all these years, up until his death for you as a dependent ?

3) During the years you and your husband were not living with one another,did

he or anyone else claim you as a dependent on a State or Federal Tax return ?

[carlie]

Gail,

I don't know if any of this information will help your claim.

I don't know if 38CFR 3.53 still reads this way.

I don't know if Citation: VAOPGCPREC 58-91, is valid to date.

I don't know how the Smilies got in here, I would have chosen to put them in places other than where they are.

Good luck with your endeavor.

§3.53 Continuous cohabitation.

(a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

(B) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section.

[41 FR 18300, May 3, 1976, as amended at 59 FR 32659]

**************************************************************

**************************************************************

DATE: 06-17-91

CITATION: VAOPGCPREC 58-91

Vet. Aff. Op. Gen. Couns. Prec. 58-91

TEXT:

Meaning of "Legal Impediment" for Purposes of Deemed-Valid Marriage Under 38 U.S.C. § 103(a) -- Common-Law Marriage

QUESTION PRESENTED:

Does the requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriage constitute a legal impediment to a purported marriage for purposes of establishing a deemed-valid marriage under 38 U.S.C. § 103(a)?

COMMENTS:

1. This question arises in a case involving a claimant for dependency and indemnity compensation (DIC) who cohabited with a veteran as husband and wife in Puerto Rico for over four years prior to their ceremonial marriage, which occurred 9 days prior to the veteran's death on May 13, 1988. Common-law marriage is not recognized in Puerto Rico, and the claimant's ceremonial marriage did not meet the requirement of 38 U.S.C. § 404 for DIC that the surviving spouse have been married to the veteran for one year or more unless children were born of the marriage or the marriage occurred within 15 years of termination of the veteran's military service. At a hearing on April 2, 1990, the claimant testified to having been unaware that common-law marriage is not recognized under Puerto Rican law.

2. Section 103(a) of title 38, United States Code, provides in pertinent part:

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 Department of Veterans Affairs , 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, ... the purported marriage shall be deemed to be a valid marriage ....

Section 103(a) was enacted in section 2(a) of Pub. L. No. 85-209, 71 Stat. 485 (1957), and was incorporated without change in title 38 as recodified by Pub. L. No. 85-857, 72 Stat. 1105, 1109 (1958). It has been the long-standing interpretation of this Department that lack of recognition of common-law marriage by a jurisdiction does constitute a legal impediment within the meaning of section 103(a).

3. The basis for this interpretation was clearly stated in Administrator's Decision No. 979, issued on April 2, 1962. A.D. No. 979 dealt with the question of whether the lack of a civil ceremony, required for a valid marriage under French law (there had been a religious ceremony in France), constituted a legal impediment within the meaning of section 103(a). That decision held that:

The term "legal impediment" in 38 USC 103(a) must be construed as including not only (1) particular substantive conditions for validity which may exist in certain jurisdictions such as those respecting age, race, mental capacity, marital status, and consanguinity, but also, with respect to one of the commonly accepted forms for creating a marriage (i.e., civil, religious, common-law, and tribal), (2) the special formalities, or external conduct required of the parties or of third persons, such as public officers, for the formation of a valid marriage by the laws of a particular jurisdiction.

The Administrator concluded that the French requirement of a civil ceremony fell within the meaning of the term "legal impediment" as so interpreted. This decision was soon followed by a series of unpublished opinions by this office which concluded that non-recognition of common-law marriage in a jurisdiction constitutes a legal impediment for purposes of section 103(a). See Digested Opinions, 10-1-62 (Veteran), 9-17-63 (Veteran), and 10-16-63 (Veteran) ("the lack of recognition by a state of a common-law relationship as creating a valid marriage is a 'legal impediment' within the meaning of that term as used in 38 USC 103(a)" (emphasis in originals)); see also Digested Opinion, 1-31-74 (Veteran) ("It is well established that a particular jurisdiction's non-recognition of a common-law marriage may constitute a 'legal impediment' within the meaning of 38 U.S.C. 103(a).").

4. While A.D. No. 979 is no longer considered to be a binding opinion under 38 C.F.R. §§ 3.101 and 19.103, as amended, see 54 Fed. Reg. 5610, 5611 (1989), it and the subsequent opinions of this office nonetheless reflect the Department's long-standing, largely contemporaneous construction of section 103(a), a statute which VA had helped develop. "Interpretations ... by those charged with the duty of administering and enforcing a statute have great weight in determining the operation of a statute" and special weight may be accorded where, as here, agency officials participated in the legislative drafting process. 2A N. Singer, Sutherland Statutory Construction § 49.05 (4th ed. 1984).

5. The decision in A.D. No. 979 was based in part upon an examination of the legislative history of Pub. L. No. 85-209. As noted in A.D. No. 979, the purpose of that statute, as stated in its preamble, was to "liberalize certain criteria for determining eligibility of widows for benefits." A.D. No. 979, at p. 1, described the objective of the statute as being to "alleviate hardship and avoid harsh results in death benefit cases, by requiring recognition of certain asserted marriages to veterans notwithstanding defects which invalidate them."

6. A.D. No. 979 relied heavily on and quoted extensively from 42 Op. Att'y Gen. 37 (1961). That Attorney General's opinion had approved the holding of an opinion of the VA General Counsel, subsequently issued as Administrator's Decision No. 976 (1961), which had concluded that the term "legal impediment" in section 103(a) encompasses more than merely cases of prior, undissolved

marriage. That opinion involved the purported common-law marriage between a claimant for gratuitous veterans' death benefits and a veteran who was the claimant's first cousin. The couple had lived as husband and wife for thirty years prior to the veteran's death and had had seven children together. The opinion addressed the issue of whether consanguinity (closeness of blood relationship), which barred the marriage under State law, constituted an impediment to the marriage within the meaning of section 103(a). The Attorney General concluded that "the phrase in the statute 'without knowledge of any legal impediment' is not restricted to lack of knowledge of the factual circumstances which caused the impediment to a valid marriage. Lack of knowledge of a law prohibiting particular marriages is apparently within the scope of section 103(a)." 42 Op. Att'y Gen. at 40.

7. The Attorney General explained that the language of section 103(a) is not limited to any particular legal impediment to marriage and that that language is broad enough to cover the situation there presented. Noting the liberalizing objectives of Pub. L. No. 85-209, the Attorney General concluded that the legislative history of the provision does not suggest a narrower reading. The Attorney General noted that, while the hardship examples provided to Congress by VA in support of the deemed-valid marriage legislation all involved prior, valid and undissolved marriages, see H.R. Rep. No. 284, 85th Cong., 1st Sess. (1957); S. Rep. No. 849, 85th Cong., 1st Sess. (1957), Congress' adoption of section 103(a)'s unrestricted language demonstrates its desire to alleviate other, similar types of hardships as well. The Attorney General found that nowhere in section 103 is there language which supports a narrower reading of the term "legal impediment." The Attorney General further reasoned that, as a widow "could hardly be without factual knowledge of her own prior marriage," the lack of knowledge requirement must have a broader meaning, encompassing lack of knowledge of the law prohibiting the marriage, not just "knowledge of the factual ground which activated the law." 42 Op. Att'y Gen. at 38-40.

8. A.D. No. 979, at p. 2, summarized the reasoning of the Attorney General's opinion as follows:

that 38 USC 103(a) is not limited in terms to a particular legal impediment, that the legislative history of the provision does not suggest a restrictive interpretation, that there was a liberalizing purpose to alleviate hardships in marital determinations, that if Congress had intended a narrow eaning respecting the term "legal impediment", it could easily have so provided by appropriate language, and that a literal reading of section 103(a), dealing with invalid marriages, is not inconsistent with the provisions of section 103©, respecting determinations as to valid marriages.

The reasoning of the Attorney General's opinion, as relied upon in A.D. No. 979, is, in our view, convincing. Further, we note that the terms of section 103(a) have only been amended twice since their enactment. See Pub. L. No. 90- 77, § 101(B), 81 Stat. 178 (1967) (reducing the required cohabitation period from five years to one, or any period of time if a child has been born of or prior to the purported marriage); Pub. L. No. 99-576, s 701(2)(A), 100 Stat. 3248, 3290 (1986) (making the provision gender neutral). These amendments have served to reinforce the liberal construction Congress intended that this section be given. Accordingly, we see no reason to depart from the conclusions reached in A.D. No. 979 and 42 Op. Att'y Gen. 37.

9. Applying the conclusions of these opinions in the instant case, it is plain that the requirement of a ceremonial marriage by a jurisdiction such as Puerto Rico constitutes a legal impediment to a purported marriage under section 103(a) for purposes of gratuitous veterans' death benefits. As with a prior undissolved marriage, consanguinity which renders a purported marriage invalid under state law, or the requirement of a civil ceremony by the relevant jurisdiction, the lack of a ceremonial marriage in a jurisdiction which requires such for a valid marriage is a legal impediment which, if unknown to the claimant, can create the type of hardship section 103(a) was intended to alleviate. For the reasons outlined above, we consider the terms of section 103(a) broad enough to encompass such a situation.

10. In the course of considering this claim, the Compensation & Pension (C&P) Service raised the issue of whether there was, in this case, a marriage to which an impediment could arise. Obviously, in no case where section 103(a) is applied will there already exist a valid marriage, or the application of section 103(a) would not be needed. See Op. G.C. 6-59 (3-10- 59) ("The word 'marriage' as here 38 U.S.C. § 103(a) used does not refer to a valid marriage. If it did, Pub. L. No. 85-209 would serve no useful purpose."); accord, Digested Opinion, 3-10-59 (Veteran). If the C&P Service was referring to the absence of a ceremonial marriage, such a marriage is clearly not a requirement for application of section 103(a) as that statute has long been interpreted by this Department. For example, the holding in A.D. No. 979 specifically referenced common-law marriage requirements and clearly contemplated application of section 103(a) to such marriages. The above- referenced Attorney General's opinion and A.D. No. 976 involved a purported common-law marriage, as did Op. G.C. 6-59 and Digested Opinions, 3-10-59 (Veteran) and 10-10-58 (Veteran). Moreover, the legislative history of this provision shows that reference to ceremonial marriage was deleted from legislative proposals on this subject based on VA's statement that the theory behind the legislation is equally applicable to "other than ceremonial marriages." See Letter to Chairman, House Committee on Veterans' Affairs, from John S. Patterson, Acting Administrator of Veterans Affairs, on H.R. 6889, 84th Cong., 1st Sess. 1 (Dec. 14, 1955).

11. We leave for consideration by adjudication personnel the factual issue of whether the claimant was without knowledge of the legal impediment.

HELD:

Section 103(a) of title 38, United States Code, provides in part that, where it is established that a claimant for gratuitous veterans' death benefits entered into a marriage with a veteran without knowledge of the existence of a legal impediment to that marriage, and thereafter cohabited with the veteran for one year or more immediately preceding the veteran's death, such marriage will be deemed to be valid. The requirement of a marriage ceremony by a jurisdiction which does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of that section.

VETERANS ADMINISTRATION GENERAL COUNSEL

Vet. Aff. Op. Gen. Couns. Prec. 58-91

Edited November 21, 2005 by carlie

[carlie]

Gail,

More food for thought.

December 23, 1996 M21-1, Part III

Change 58

SUBCHAPTER II. MARITAL DEVELOPMENT

6.06 DEVELOPMENT OF MARITAL RELATIONSHIP (38 CFR 3.205)

a. Valid Marriage. VA benefits may be paid or increased if a marriage is established for VA purposes. Under 38 CFR 3.1(j), a marriage may be established for VA purposes if the marriage is valid under the law of the place where the parties resided at the time of the marriage. Therefore, successful development of a marriage for VA purposes requires knowledge of:

(1) Where the claimed marriage took place and

(2) The requirements for establishing a legal marriage in the jurisdiction where the marriage took place.

NOTE: In death cases it is possible to "deem valid" a marriage for VA purposes even though the marriage is completely invalid under the law of the jurisdiction where the alleged marriage occurred. See paragraph 6.12.

b. Primary Evidence of Marriage. Effective November 4, 1996, 38 CFR 3.204 provides that VA will accept the written statement of a claimant as proof of marriage provided the statement contains the date of marriage (month and year) and the place of the event (city and state). However, documentary evidence of marriage is required if the claimant does not reside within a state, the claimant's statement on its face raises a question of its validity, the claimant's statement conflicts with other evidence of record, or there is a reasonable indication of fraud or misrepresentation. In the event documentary evidence of marriage is required, primary evidence of marriage consists of a copy or abstract of the public record of marriage or a copy of the church record of marriage containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages, if shown on the official record. A marriage certificate can be requested via the MARRIAGE CERTIFICATE field on the BDN 204 Screen.

c. Secondary Evidence of Marriage. If primary evidence of the marriage is unavailable, the marriage can be established by submission of the following evidence in the order of preference listed:

(1) An official report from the service department as to a marriage that occurred while the veteran was in service.

(2) An affidavit of the clergyman or magistrate who officiated.

(3) The original certificate of marriage, if VA is satisfied that it is genuine and free from alteration.

(4) Affidavits or certified statements signed by two or more witnesses to the ceremony.

(5) In jurisdictions where marriages other than by ceremony are recognized, the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the periods of cohabitation, places of residence, whether the parties held themselves out as husband and wife, and they were generally accepted as such in the communities in which they lived.

(6) Any other secondary evidence that reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred.

6-II-1

M21-1, Part III December 23, 1996

Change 58

6.07 FREE TO MARRY (38 CFR 3.205(b))

a. General. In all jurisdictions in the United States and most other places in the world, a marriage cannot be contracted if either party is already married. Therefore, establishment of a legal marriage always implies a finding that the parties to the marriage were free to marry at the time of the alleged marriage. If either party was married previously, the current marriage cannot be established unless the prior marriage was terminated by death, divorce or annulment or the prior marriage is determined to have been void under state law.

NOTE: In some states it is possible to contract a marriage without a ceremony and without registration of the marriage. See paragraph 6.08. A so-called common law or informal marriage, once established, has the same legal effect as a traditional ceremonial marriage and can be ended only by divorce, annulment or the death of one of the marriage partners. There is no such thing as a "common law divorce."

b. Statement of Marital History Required. Before a marriage can be established for VA purposes, it is always necessary to have the claimant's statement of marital history. This information can come from an application or from VA Form 21-686c, "Declaration of Status of Dependents." The statement must show all prior marriages of both parties and must show the following:

(1) The first and last names of prior marriage partners.

(2) How prior marriages terminated (death, divorce, annulment).

(3) The date prior marriages terminated (month and year at a minimum).

(4) The place prior marriages terminated (city and state).

NOTE: The 686c field on the BDN 204 Screen can be used to send a VA Form 21-686c to the claimant.

c. Requirement for Documents. Documentary proof of dissolution of prior marriages is not routinely required. The claimant's certified statement furnishing the information outlined in subparagraph b is usually adequate. However, documentary evidence of marriage is required if the claimant does not reside within a state, the claimant's statement on its face raises a question of its validity, the claimant's statement conflicts with other evidence of record, or there is a reasonable indication of fraud or misrepresentation. If dissolution of prior marriages cannot be established based on the claimant's certified statement, documentary proof of dissolution of all prior marriages of both parties is required.

d. Divorce Decrees

(1) The only acceptable documentary evidence of termination of a prior marriage through divorce (other than the original divorce decree) is a copy or abstract of a final decree of divorce.

(2) The PROOF OF DISSOLUTION-PRIOR MARRIAGE fields on the BDN 204 Screen can be used to request proof of dissolution of a prior marriage of the claimant or the claimant's spouse. A specific divorce decree can be requested by means of inserts, and proof of dissolution of all previous marriages can be requested if no names are entered.

(3) An interlocutory decree of divorce does not dissolve a marriage. Some jurisdictions provide a two-step process for dissolving a marriage. Initially, an interlocutory decree of divorce is granted. After the passage of a specified period of time, a final divorce decree is entered. The parties continue to be married until the final divorce decree is granted. If a claimant submits an interlocutory decree as proof of dissolution of a marriage, develop for a final decree.

6-II-2

July 1, 2004 M21-1, Part III

Change121

e. Proof of Death

(1) Primary evidence of death of the prior spouse of a claimant consists of one the following:

(a) An official death certificate.

(b) A copy of a coroner's report of death or a verdict of a coroner's jury.

© A death certificate signed by a medical officer if death occurred in a hospital or institution under the control of the United States Government.

(d) A clinical summary or other report showing the fact and date of death signed by a medical officer if death occurred in a hospital or institution under the control of the United States Government.

(e) An official report of death of a member of a uniformed service from the Secretary of the department concerned if death occurred while the deceased was on the retired list, in an inactive duty status or in the active service.

(f) A United States consular report of death bearing the signature and seal of the United States consul if death occurs abroad.

(g) An official report of death from the head of the department concerned if the deceased was, at the time of death, a civilian employee of a United States Government agency and death occurred abroad.

(2) If none of the evidence listed in subparagraph e(1) above can be furnished, the claimant must state the reason why. The fact of death can then be established on the basis of the following secondary evidence:

(a) Affidavits of persons who have personal knowledge of the fact of death, have viewed the body of the deceased and know it to be the body of the person whose death is being established. The affidavits must set forth all the facts and circumstances concerning the death such as the place, date, time and cause thereof.

(b) A finding of the fact of death made by another Federal agency in the absence of evidence to the contrary.

f. Finding of Death by VA. In the absence of any of the evidence outlined in subparagraph e above, a finding of death can be made by VA if the fact of death is shown by a preponderance of competent evidence. An administrative decision is required. See part IV, chapter 11, subchapter IV.

g. Proof of Annulment. Annulment of a marriage can be established by copy or abstract of the annulment decree.

h. Void Marriage

(1) Certain "marriages" have no legal effect even though the parties may have gone through a marriage ceremony and may have registered the marriage. Such marriages are legally void because the parties did not satisfy the legal requirements for entering into a marriage at the time of the alleged marriage.

(2) If a purported marriage is determined to have been void, there is no need to dissolve it through divorce or annulment before entering into a subsequent marriage. Likewise, a surviving spouse can reestablish entitlement to death benefits without proof of divorce (prior to November 1, 1990) or annulment if a subsequent purported marriage is determined to have been void.

6-II-3

M21-1, Part III July 1, 2004

Change 121

(3) Not all legally defective marriages are void. For example, in most jurisdictions marriage by underage individuals is not automatically void. Generally, a marriage will be considered void only if the defect is fundamental. Grounds for voiding a marriage vary from state to state but in most states a marriage is void if either party is already married at the time of the marriage or if the parties are closely related.

(4) If it is necessary to establish the termination of a marriage and the claimant alleges that the marriage was never terminated because it was void from the outset, fully develop the facts surrounding the alleged void marriage. After complete development, including, if possible, the certified statements of the parties to the marriage, submit the case to District Counsel for a legal opinion as to whether or not the purported marriage is void. See part IV, paragraph 12.03e.

i. Claimant Unable to Prove Dissolution of Prior Marriage

(1) If evidence establishes that either party to a claimed marriage was previously married but the claimant is unable to prove that the prior marriage was dissolved or that it was void, make every effort to assist the claimant in securing proof of dissolution of the prior marriage. See subparagraph e above if the claimant alleges that the former spouse is deceased.

(2) If the claimant alleges that the prior marriage was dissolved by divorce but it is impossible to secure evidence of the divorce that satisfies 38 CFR 3.205(b), the claimant can establish the current marriage by obtaining a new decree of divorce dissolving the prior marriage. It is possible to initiate a divorce action even if the whereabouts of the other party are unknown.

(3) If a surviving spouse filing for death benefits is unable to prove dissolution of a prior marriage of the veteran, develop for a deemed valid marriage. See paragraph 6.12.

(4) State court evidence rules regarding presumptions of the validity of the most recent marriage cannot be used to establish a current marriage for VA purposes if there is evidence of a valid prior undissolved marriage.

j. Removal of Impediment to Marriage. If one or both parties were already married at the time they attempted to enter into a marriage and the earlier marriage is later dissolved, the status of the second marriage is determined under state law. If, after the dissolution of the prior marriage, the parties resided as husband and wife in a state which recognizes common law marriages, a common law marriage will arise automatically on dissolution of the prior marriage. In states not recognizing common law marriages, the removal of the impediment may or may not validate the later marriage. Fully develop the facts of the case and, if necessary, request a legal opinion from District Counsel as to the validity of the second marriage. See part IV, paragraph 12.03g.

6.08 COMMON LAW MARRIAGES (38 CFR 3.1(j))

a. General. Some states (see subparagraph d. below)and countries (see subparagraph e. below) recognize informal or common law marriages. Such marriages are entered into by agreement of the parties and do not require a formal ceremony. Some jurisdictions provide for registration of informal marriages but a common law marriage can usually be established without its being registered with any governmental agency. Once a common law marriage has been established in a jurisdiction which recognizes common law marriages, it is a valid marriage in all respects and is no different from a ceremonial marriage. It cannot be terminated except through divorce, annulment or the death of one of the parties. A valid common law marriage established in a jurisdiction recognizing such marriages continues to be valid if the parties later move to a jurisdiction that does not recognize common law marriages. It is also possible to establish a common law marriage for VA purposes in a jurisdiction which does not recognize common law marriages. See part IV, paragraph 12.04f.

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b. Requirements. The legal requirements for establishing a common law marriage vary from jurisdiction to jurisdiction. Typically, however, ALL of the following elements must be present before a common law marriage can be established:

(1) An agreement between the parties to be married. Often this agreement is explicit but it can be inferred from the conduct of the parties. The statement of one of the parties that there was no agreement to be married is not necessarily conclusive, especially when the statement is self-serving and there is evidence the parties held themselves out as married.

(2) Cohabitation. This means that the parties actually lived together for some period of time.

(3) Holding Out to the Public as Married. This is probably the most important element from the point of view of development. A holding out can be established by statements of persons in the community who knew the parties as husband and wife and from documents which show that the parties represented themselves as married. The parties do not have to have used the same last name although it is certainly easier to establish a holding out if they did. Possible sources of evidence of holding out include lease agreements, joint bank statements, utility bills, tax returns, insurance forms, employment records and any other document requiring the individual to indicate marital status.

c. Development of Common Law Marriage

(1) Develop to establish a common law marriage if:

(a) The claimant alleges a common law marriage or

(b) The claimant is unable to establish a claimed ceremonial marriage and there is evidence that the parties lived together in a jurisdiction which recognizes common law marriages.

(2) Have the claimant in a death case complete VA Form 21-4170, "Statement of Marital Relationship." In a live case, the veteran should use VA Form 21-4138, "Statement in Support of Claim," to furnish a statement concerning the claimed marital relationship. In addition, the veteran's claimed spouse must complete VA Form 21-4170.

(3) In both live and death cases, send the claimant two VA Forms 21-4171, "Supporting Statement Regarding Marriage," and tell the claimant that the forms should be completed by two persons who know, as the result of personal observation, the relationship which exists or existed between the parties.

(4) If children were born of the marriage, request copies of their birth certificates. The birth certificates should show the names of both parents.

(5) Whenever possible, develop the common law marriage by using the COMMON LAW field on the BDN 204 Screen.

d. State Positions on Common Law Marriage. See part IV, paragraph 12.04d. for a complete list of the state positions in regard to common law marriage.

e. Common Law Marriages Outside the U.S. See Part IV, 12.04e. regarding the validity of marriages outside the U. S.

6.09 TRIBAL MARRIAGES (38 CFR 3.1(j)) a. If the validity of a purported marriage which was alleged to have been celebrated in accordance with tribal custom is at issue, fully develop the facts and circumstances surrounding the marriage. Development must include requests for the following:

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(1) Affidavits from the parties to the purported marriage and at least two persons who were present at the time of the ceremony indicating:

(a) The name of the tribe.

(b) The date and place of the ceremony.

© The name and address of the person who performed the ceremony.

(2) An affidavit from the person who performed the ceremony showing the date and place of the ceremony and that person's authority for conducting the ceremony.

(3) Copies of any available written materials explaining the nature of the tribal marriage ceremony.

b. When all available information has been received, prepare a request for legal opinion from District Counsel. The issue is the validity of the claimed tribal marriage.

6.10 PROXY MARRIAGES (38 CFR 3.1(j))

a. A proxy marriage is a marriage contracted or celebrated by one or more agents acting on behalf of the actual parties to the marriage. The validity of a proxy marriage depends on the law of the particular jurisdiction.

b. If the validity of a claimed proxy marriage is at issue, fully develop the facts surrounding the proxy marriage and secure certified copies of any documents or certificates issued in connection with the marriage.

c. When all available information has been received, prepare a request for legal opinion from District Counsel. The issue is the validity of the proxy marriage.

6.11 ESTABLISHING A VALID MARRIAGE IN DEATH CASES

a. Overview. A claimant filing for death benefits as surviving spouse of a veteran must establish that the claimant and the veteran had a valid marriage. In most instances, this is accomplished by proving the existence of a legal marriage under state law. However, it is also possible under certain circumstances to "deem valid" for VA purposes a marriage which is not valid under state law. See paragraph 6.12. In addition to establishing a valid (legal or deemed valid) marriage, there are two other special considerations which are relevant to establishing entitlement to benefits as the surviving spouse of a veteran. One is "continuous cohabitation" (par. 6.13). The other is the marriage dates requirement (38 CFR 3.54).

b. Marriage Dates. Do not develop the validity of a claimed marriage to the veteran unless the marriage, if established, would satisfy the marriage dates requirement of 38 CFR 3.54.

c. Proof of marriage

(1) Ceremonial Marriage. See paragraph 6.06.

(2) Common Law Marriage. See paragraph 6.08.

(3) Tribal Marriage. See paragraph 6.09.

(4) Proxy Marriage. See paragraph 6.10.

d. Proof of dissolution of prior marriages. See paragraph 6.07

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e. Continuous Cohabitation. See paragraph 6.13.

6.12 DEEMED VALID MARRIAGE (38 CFR 3.52)

a. General. The concept of a deemed valid marriage (38 CFR 3.52) makes it possible to establish a marriage for VA purposes even though a legal marriage does not exist under state law. Typically, there is no legal marriage under state law because of the existence of some impediment to the marriage such as a prior undissolved marriage. A deemed valid marriage can exist only in connection with a claim for death benefits. It is not possible to deem valid the marriage of a live veteran.

b. Requirements. Under 38 CFR 3.52, a deemed valid marriage can be recognized if ALL of the following requirements are met:

(1) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the marriage or was born to the parties before the marriage.

(2) The surviving spouse entered into the marriage without knowledge of the impediment.

(3) The surviving spouse lived with the veteran at the time of the veteran's death or, if they were separated, the surviving spouse was not at fault in the separation.

(4) No other claimant has established entitlement to VA benefits as the veteran's surviving spouse.

c. Development. Initiate development for a deemed valid marriage if it appears that there is an impediment to establishing a surviving spouse's legal marriage to the veteran. The DEEMED VALID field on the BDN 204 Screen may be used to develop a deemed valid marriage.

6.13 CONTINUOUS COHABITATION (38 CFR 3.53)

a. General. In order to qualify as the "surviving spouse" of a veteran for VA purposes, the claimant must meet the continuous cohabitation requirement of 38 CFR 3.50(b)(1). The continuous cohabitation requirement is related to the concept of deemed valid marriage. In the interest of fairness, VA will recognize (deem valid) a marriage which is not legally valid under state law. Likewise, even though a person may be the veteran's legal surviving spouse, VA will not recognize that person for benefit payment purposes if the person deserted the veteran.

b. Elements of Continuous Cohabitation. Although the continuous cohabitation requirement is commonly expressed in terms of the surviving spouse's having lived continuously with the veteran from the date of marriage to the date of the veteran's death, in reality it is more limited. The continuous cohabitation requirement can be satisfied by establishing any of the following:

(1) That the veteran and claimant were living together as husband and wife at the time of the veteran's death.

(2) That they were living apart but that there was no estrangement. In other words, they lived apart for medical, business or other reasons not involving marital discord.

(3) That they were living apart at the time of the veteran's death due to marital discord but that the claimant was not materially at fault in causing the separation. This means that any fault on the part of the claimant was insignificant. If, however, the evidence shows that both parties were engaged in adulterous relationships, both parties would be materially at fault and continuous cohabitation cannot be found. Determine fault or the absence of fault based on an analysis of the conduct of both parties at the time of the separation.

c. Temporary Separations. Separations which occur during the course of the marriage, regardless of who was at fault, are irrelevant if the parties are no longer estranged at the time of the veteran's death. The term

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"continuous cohabitation" is something of a misnomer in that continuous cohabitation from date of marriage to date of death is not really required. What is required is that there be no separation due to the fault of the surviving spouse at the time of the veteran's death.

d. Claimant's Obligation to Reconcile. The spouse of a deceased veteran who was separated from the veteran due to the fault of the veteran has no affirmative obligation to attempt to reconcile with the veteran. As long as the spouse is not materially at fault in the separation, the continuous cohabitation requirement is met. This is the case even if the parties live apart for many years prior to the veteran's death.

e. Birth of a Child. The pending or actual birth of a child to the claimant as the result of relations with a person other than the veteran would be immaterial unless this was the cause of the separation.

f. Continuous Cohabitation Development

(1) Initiate development of the issue of continuous cohabitation if there is an indication, either from the claimant's statement or other evidence of record, that the veteran and the claimant were not living together immediately prior to the veteran's death. Accept the claimant's certified statement as to the reasons for the separation without further development if there is no contradictory evidence of record.

(2) If there is conflicting evidence concerning the cause of the separation, undertake complete development of the facts. Ask relatives of the veteran to furnish statements concerning their understanding of the circumstances surrounding the separation if their names and current addresses are of record. Also, ask the claimant to submit a certified statement on VA Form 21-4138, "Statement in Support of Claim," together with certified statements from two persons showing:

(a) Date, place and a full explanation of each separation.

(b) Whether or not there was a written agreement or court order of separation; if so, a copy should be submitted.

© Whether the claimant or the veteran ever applied for divorce or annulment; if so, a certified copy of the decree should be submitted.

(3) Use the COHABITATION-QUESTIONABLE field on the BDN 204 Screen to send the continuous cohabitation development letter to the claimant. The COHABITATION-NOT INDICATED field requests the claimant's statement concerning continuous cohabitation and may be used if the claimant failed to complete the continuous cohabitation block on the application for benefits.

6.14 CONDUCT WARRANTING INFERENCE OF REMARRIAGE OF SURVIVING SPOUSE (38 CFR 3.50)

a. General. In order to receive death benefits as the surviving spouse of a deceased veteran, the claimant must be unmarried (38 CFR 3.50(b)(2)). (However, a surviving spouse who remarries after age 55 may retain eligibility to CHAMPVA benefits—see 23.14a.) Title 38 CFR 3.50 imposes the additional requirement that the claimant not be living with a person of the opposite sex and holding him/herself out publicly as the spouse of that person. If the claimant is living with a person of the opposite sex and is holding him/herself out as the spouse of that person, there is held to be an inference of remarriage. Payment of death benefits is then barred under 38 CFR 3.50(b). The Veterans Service Center will make the determination as to whether or not the bar applies in an Administrative Decision as provided in part IV, paragraph 11.30. (But see paragraph g below.)

b. Reputation in General Community Not Required. It is not necessary to establish that the claimant and the claimant's roommate were known generally throughout the community as husband and wife in order to invoke an inference of remarriage under 38 CFR 3.50(b). It is sufficient to establish that there was a single instance of holding out as husband and wife.

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c. Common Law Marriage Distinguished. In a state which recognizes common law marriages (par. 6.08), conduct which would warrant an inference of remarriage under 38 CFR 3.50(b) will probably also suffice to establish a common law marriage under state law. The inference of remarriage concept in 38 CFR 3.50(b) enables VA to deny payment of surviving spouse benefits in states where the claimant is living as the spouse of another person but is not legally married because the state does not recognize common law marriages. Also, it is possible to infer remarriage for VA purposes even though a legal marriage (common law or otherwise) might be impossible because of the existence of an impediment to marriage. For example, a claimant might be living with a married person and holding him/herself out as the spouse of that person. A common law marriage cannot be established because the other party is already married. However, benefits could be barred under 38 CFR 3.50(b).

d. Holding Out Requirement. Before benefits can be denied based on an inference of remarriage it must be established that the claimant lived with another person AND held him/herself out openly to the public as the spouse of the other person. This means that the claimant and a person of the opposite sex can live together openly without jeopardizing the claimant's entitlement to VA benefits as long as they make no representations to the effect that they are married.

e. Conduct Terminated before Entitlement Date. Conduct warranting an inference of remarriage does not constitute a bar to benefits if the conduct terminated before the date of entitlement to VA benefits. However, if the conduct caused a common law marriage to come into existence, VA benefits cannot be paid unless the marriage was dissolved prior to November 1, 1990. See paragraph 6.08a.

f. Inference of Remarriage Development

(1) If specific information is received from an apparently reliable source that a claimant's conduct provides a reasonable basis for an inference of remarriage, advise the claimant of the nature of the information received, the effect of a finding that an inferred marital relationship exists and of the claimant's right to furnish evidence, to have a personal hearing and to be represented. Do not volunteer the name of the source of the information. The claimant is entitled to this information on specific request.

(2) Concurrently prepare a request for field examination (ch. 8) to obtain the claimant's statement about the alleged marital relationship and to secure any other evidence that may be necessary for a determination as to whether or not benefits are barred by an inference of remarriage. Ask the field examiner to determine a specific date from which any inferred marital relationship can be said to have come into existence.

(3) Once credible evidence has been submitted that a claimant has engaged in conduct warranting an inference of remarriage, the burden of proof shifts to the claimant. This means that remarriage will be inferred unless the claimant establishes by a preponderance of the evidence that:

(a) The claimant is not living with a person of the other sex or

(b) The claimant is living with a person of the opposite sex but they are not holding themselves out publicly as husband and wife.

g. DIC Cases On or After October 1, 1998. The Veterans Benefits Act of 1998 provides that effective October 1, 1998, inferred remarriage will not bar DIC benefits if the surviving spouse ceases living with another person and holding himself or herself out openly to the public as that person’s spouse. See part IV, paragraph 12.13f.

6.15 TERMINATION OF SURVIVING SPOUSE'S MARRIAGE--RESTORATION OF BENEFITS (38 CFR 3.55)

a. General. Effective November 1, 1990, benefits cannot be paid if VA determines that surviving spouse benefits are barred because the claimant was legally remarried or was engaged in conduct warranting an inference of remarriage. However, surviving spouse status can be reestablished if, prior to November 1, 1990, the marriage was terminated by divorce or death; legal proceedings were commenced that resulted in the termination of the marriage; or (in the case of an inferred marriage) the parties stopped living together. Surviving spouse status can also be reestablished if the marriage is annulled or declared void. See paragraph d below concerning DIC cases on or after October 1, 1998. 6-II-9

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b. Development for Termination of Legal Marriage. Initiate development for termination of a legal marriage only if it is alleged that legal proceedings which resulted directly in the termination of the marriage were initiated prior to November 1, 1990, that the marriage was actually terminated prior to November 1, 1990, or that the marriage was annulled or void. Request the following evidence:

(1) A statement of all the claimant's marriages showing where, when and how each was dissolved.

(2) A statement of whether or not the claimant ever filed an application for or received VA benefits as the spouse or surviving spouse of another veteran. If so, the name of the other veteran and VA claim number must be shown.

(3) A copy of the public record of death or copy of a final decree of divorce or annulment as proof of termination of each marriage after the date of the veteran's death. Note that documentary proof of marriage dissolution is always required if the marriage occurred after the veteran's death. Marriages occurring prior to the claimant's marriage to the veteran do not have to be supported by documentary evidence unless the evidence of record is inconsistent. See paragraph 6.07c.

c. Development for Cessation of Inferred Marriage

(1) If the claimant alleges the marital relationship was terminated prior to November 1, 1990, or, in a DIC case, after September 30, 1998, ask him or her to submit a certified statement showing the date he or she stopped living with the other person and the circumstances surrounding the cessation of the relationship.

(2) If there is conflicting evidence or if corroborating evidence is deemed necessary, request a field examination to verify the claimant's statements concerning cessation of the relationship. See chapter 8.

(3) If the person with whom the claimant was living has died, the bar to benefits can be removed by submitting proof of death which meets the requirements of paragraph 6.07e.

d. Reinstatement of DIC Eligibility after September 30, 1998

(1) The Veterans Benefits Act of 1998 (Public Law 105-178) made it possible for a surviving spouse to re-establish DIC entitlement after termination of remarriage or inferred remarriage. Therefore, effective October 1, 1998, eligibility for DIC (but not pension) is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment, or in the case of an inferred marriage, the parties stopped living together.

NOTE: It is not necessary for a surviving spouse to have applied for or received DIC benefits prior to the remarriage in order to qualify for DIC after termination of the remarriage.

(2) A determination that benefits are payable on or after October 1, 1998, on the basis that a DIC surviving spouse’s remarriage has been dissolved by divorce or death requires evidence establishing the claimant’s status as surviving spouse as of the date of the veteran’s death. Develop to establish the requisite relationship. See paragraph 6.11. In addition, the following evidence is required:

(a) A statement of all of the claimant’s marriages including where (city and state), when (month/day/year) and how each was dissolved.

(b) A statement as to whether the claimant has ever filed an application or received VA benefits as spouse, or

surviving spouse of any other veteran. If so, the claimant must provide the name and VA claim number of the other veteran

[Guest Gail]

Thank you both, Carlie, and Jim S. I have read and re-read the items posted by you both, except for the last one. The one I read:

"(3) The term "surviving spouse" means (except for purposes of

chapter 19 of this title) a person of the opposite sex who was the

spouse of a veteran at the time of the veteran's death, and who

lived with the veteran continuously from the date of marriage to

the date of the veteran's death (except where there was a

separation which was due to the misconduct of, or procured by, the

veteran without the fault of the spouse) and who has not remarried

or (in cases not involving remarriage) has not since the death of

the veteran, and after September 19, 1962, lived with another

person and held himself or herself out openly to the public to be

the spouse of such other person.

Due to the circumstances revolving around 'continuious cohabitation'- his infidelity and desertion of myself was the separating reason, and it was thru no fault of mine, but he was fully responisble for us parting, and I was not at fault, that, from what I understand could cover the continuious cohabitation clause. I have not, since the death of the veteran, lived with anyone, nor held myself out as married. As all this was in 1982, I don't understand the September 1962 thing as I was only 12 yrs old at that time.

In Georgia, if you had been divorced less than 6 months, you had to show a divorce decree, if longer, you were not required to do so. I know of the divorce by publication, which requires it be published in the legal section of the newspaper in the city the one being divorced last resided. This could have been gotten around had he really filed for a divorce by publication, if 1. He said he didn't know where I was at that time and 2. If he did know what city I was in, and he did, have it published in a newspaper in a city ---say Atlanta or any other town around me that I would not have seen.

I had stated in other posts that I had gotten pregnant and married the father of my child in a very short common law marriage, of which we were divorced 2 months after her birth, and final in Dec. 1983. It was only when she was 15 mos. old, did we ceremonially re-marry. We separated from that marriage, I think in August 1990 and even tho it was filed on the grounds of irretrevicobly broken' in other words, a 'no fault divorce' it took longer to obtain than usual, due to the actions of my husband during the proceedings.

I had no clue about the time limitations or whatever of WI, so when the now deceased told me the divorce was final long enough for me to common law marry my child's dad, I did. He could never give me the date, saying he didn't remember the date and would send me a copy when he found it where he had packed it up since he had moved several times since it occurred. I will admit myself I was stupid in this matter...I was very naieve to take his word. I can't understand how or if bigamy charges could result for me, as I was in belief I was divorced, and I was an 'unwilling' bigamist, and since I have been divorced from the last marriage to my child's dad for 13 years, and now the veteran has been dead for 4 years. You must remember, before he married the one that he was living with at his death, and died before he could divorce her, he had 2 more marriages up there. He had 2 children, which I stated received nothing from the VA, only his SS. From the info sent to me by the VA when they denied my claim, and I had to send a letter of disagreement, he never mentioned our common law marriage, or the fact we even together during the time from our 1st divorce,final in 90-08-78, until mid 1982 when we parted for reasons stated above, and those were the same reasons the 1st marriage ended. I married him 02-72-71 while he was still in the military.

The VA has never sent me the papers you mentioned to complete; I wrote pages for an informal claim, they never told me I had to do a form 21-534, I think, and it took me months to even get one from them, and then I have sent in 4 of those, due to the fact they tell me they never received it. I had to send all the paperwork they asked in the beginning of July 2004, and statements they told me to get from persons, including his family 2 times because they said they never received either. It was only in July of this year when I got, out ot the blue, the denial letter in which they referred to items that were not even in my letter, as tho they were, said I contridicted myself and I plainly did not; said we borne a child together, which we did not, I had a miscarriage at 6wks or 8 wks in 1980-81, and you would have thought they were not even reading the information I sent them. In my letter of disagreement, I took what they said that I said and that was NOWHERE on the letter, and broke it down for them line for line. That was filed first part of July this year. I guarantee you, you could call the VA and they answer in I think they told me, in 4 states, and even the one in GA, and aske the same question and get as many different answers to the identical question as persons at the VA were asked. When I applied for my SSD in 08-02, I did not know at that time he had passed away, nor have all this info, and as my common law marriage to my childs father had ended in divorce and our other marriage had ended in divorce, I did not put on the forms for my ssd our the deceased and my common law marriage, cause I didnt have an exact and verified date. When all this came to surface, I notified my attorney for my SSD and he said nothing; on the way to the SSD hearing, I asked what I was supposed to tell them should they ask my marital status and was advised that I was to tell them I was divorced, because At the time of my original filing, I was under the mind that I was---from everybody.

When I was deemed disabled by the SS this summer, and the claim had to go thru what they call 'the writing claim', which took over 3 more months, when they sent me back the writing of the claim, they stated on there nothing of my being divorced from my childs father, and last marriage, but only that I was divorced from the deceased Vet..now how did this happen? You know as much as to the answer to that as I do. I also had a different last name from the deceased vet. I am now in the process of having my name changed back to my last name of the deceased vet. I have stated on the papers that asked the reason why I wanted my name changed to the name I was requesting, and I stated it was because I had found out that I was never legally divorced from our common law marriage, and my 2 marriages to the father of my child were not valid. I told the truth.

I know this is a mess, but this made me, and the other 3 women he married unwilling bigamist, and also the father of my child. Crazy isn't it. I cannot change what happened because he is dead, but I can try and rectify the part that was placed on me. As I had stated in a post (seems like so long ago) that I had spoken with the 'last wife' because I didnt want this to blind side her, and from what she said when I told her my first name, and said, you don't know me...and she said....'I know exactly who you are'...and from what I said, and her answer, I think she knew prior to her marriage to him that this problem existed. It is my mindframe that he thought I would never find out all of this, because he had told me differently. She immediately called my mother-in-law (after this 'grieving widow' had done as I spoke of earlier) had had no contact since she got rid of the home next door to his parents, cause she started bringing in men 3 wks after his death, and is still living with the last one she drug in there prior to moving, and immediately wanted to know how many years the deceased and I were together. His mom told her 11 or 12 years, which then she had to figure it out from the dates that this did happen. His mom has heard no more, and still as since the passing of her 'cremated' son, who is probably in the closet, has she been allowed to even bring a flower to place beside the urn.

My last contact with the VA concerning this, they told me it was in the appeals process, but I have been sent no documents to complete as stated i would have to in things I have read. THIS IS A MESS HERE and I appreciate all of your input. This is going on nearly 1.5 years now, and I am going to hang in. It was my impression of reading this, that she would have to locate a divorce or annullment decree for our common law marriage...and I wonder about the other two women......Like I told her, if she can find one, please send it to me, and let that be that.

From her actions according to all I have been told, she greived not. She refused to even give his children anything, for he died without a will and yep, I researched that, and she screwed them too. Not even any personal items. I understood her children by prior marriages got whatever. Now, that one was the fault of the children's mother. Also it is her fault for not filing for VA benefits which I ascertained by stating the situation to the VA that those children would be entitled to, but their mother would have had to file.

In answer to a question about being claimed on as dependant on a tax form...Only during the time of my 2nd marriage to my childs father, when we filed joint, and when we divorced I claimed myself. I am sure the deceased was claiming #3 on necessary va paperwork. There are so many if's, and's, and but's to this mess it is pitiful. It is myself that has had to be in grief counseling for my grief over his passing, not the merry widow, who has had a companion since he was dead about 3 weeks. Like I stated previously, it still grieves me and hurts me as much now as it did the day I found out.

In answer to the question of receiving spousal benefits and his percentage of disability: He was 100% due to severe PTSD, and I would imagine each spouse he had up there was claimed for the spouse benefit, but I received nothing. I would imagine that if it were possible to receive benefits for him having those two children by the #2 up there, he was getting payment for those. His mom didn't know. I never even got the alimony our 1978 divorce (prior to our common law marriage) awarded me, for we were not apart, and did not consider ourselves divorced, but re-married in a common law marriage, that was legal in GA where we were and I still am, and everyone considered us still married. As I told the VA I had no records that far back about joint banking accounts, loans, insurance, etc, they said send statements, and I did.

I have to tell you this before I log off. The VA had kept telling me for months that they never received any paperwork from me, (almost a year) and about 9 months after I filed I received a letter from the VA in my post office box, addressed to maybe his son about something. I called the VA, they still said they had nothing from me....but yet could not explain HOW they got my Post office Box number and mailed it to GA when the person, along with the deceased are in Wisconsin. Now answer me that one? Nobody at the VA could explain how or why they sent that there, and still claimed they had no paperwork I sent them. That is a good one isn't it? There would have been no way possible they could have done that but get the address and city from what I sent in.

Thanks again. I am going to just hang in there till I die I guess, cause I think the VA will probably drag it out hoping I will. Tho I could, now...that's up to God. I do have a very hard struggle before me.

Ya know what? If he wasn't already dead, I think I could just strangle him for creating this whole mess!

One question at the end of this book I just wrote, would it be correct to state, that it would be more up to her or the VA to prove we were not common law married, to locate divorce papers, and less up to me to prove we were? This mess will probably bring on my 'breakdown'.

In ending this post, I would like to say that if you are Christian out there, remember me in your prayers and also pray that my health will allow me to be able to walk and be pain free, and able to breathe, and not have to walk two steps and stop due to the pain, come Memorial Day in the upcoming 2006, as I have wanted so terribly to go to DC and lay a rose at both the Monument of the 101st Airborne and at the 1st Calvary Monument in memorial of my husband who fought so valiently in Vietnam, thus leaving a part of him behind that never came back and altered his whole world and life, that he could only find true peace in death.

God bless all you Vets!