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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
    • Listen Live Every Wed 5:30 PM CST to SVR Radio, Veterans Issues are discussed with various guests.

      Listen Live Every Wed 5:30 PM CST to SVR Radio, Veterans Issues are discussed with various guests. Please check the little home I am carving out for our SVR partners. http://www.hadit.com/svr.html
    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

      Hi I've updated our HadIt.com Pass It On Cards. They are in a PDF format you can print them out cut them there are 12 to a page. If you have found HadIt.com helpful and would like to pass it on to other veterans this is an easy way to do it.I hope you find them helpful, feel free to leave a few anywhere veterans gather, veterans centers, veterans hospitals, public libraries, be creative. Please make sure though, that if you want to leave some at any business you ask permission first.Here you go http://www.hadit.com...it_on_cards.pdf
    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ http://www.hadit.com/forums/index.php?/topic/40963-va-fl-10-34/ http://www.hadit.com/forums/index.php?/topic/40964-va-fl-10-32/ http://www.hadit.com/forums/index.php?/topic/40966-va-fl-10-30/ http://www.hadit.com/forums/index.php?/topic/40967-va-fl-10-26/ http://www.hadit.com/forums/index.php?/topic/40968-va-fl-10-25/ http://www.hadit.com/forums/index.php?/topic/40819-va-fl-10-24e1/ http://www.hadit.com/forums/index.php?/topic/40818-va-fl-10-24/ http://www.hadit.com/forums/index.php?/topic/40817-va-fl-10-22/ http://www.hadit.com/forums/index.php?/topic/40814-va-fl-10-04/ http://www.hadit.com/forums/index.php?/topic/40969-va-fl-10-03/ http://www.hadit.com/forums/index.php?/topic/40812-va-fl-10-02/ http://www.hadit.com/forums/index.php?/topic/40808-va-fl-09-52/ http://www.hadit.com/forums/index.php?/topic/40806-va-fl-09-50/ http://www.hadit.com/forums/index.php?/topic/40970-va-fl-09-41/ http://www.hadit.com/forums/index.php?/topic/40971-va-fl-09-38/ http://www.hadit.com/forums/index.php?/topic/40804-va-fl-09-33/ http://www.hadit.com/forums/index.php?/topic/40972-va-fl-09-28/ http://www.hadit.com/forums/index.php?/topic/40671-va-fl-09-27/ http://www.hadit.com/forums/index.php?/topic/40973-va-fl-09-26/ http://www.hadit.com/forums/index.php?/topic/40803-va-fl-09-25/ http://www.hadit.com/forums/index.php?/topic/40802-va-fl-09-21e2/ http://www.hadit.com/forums/index.php?/topic/40801-va-fl-09-21/ http://www.hadit.com/forums/index.php?/topic/40799-va-fl-09-20/ http://www.hadit.com/forums/index.php?/topic/40798-va-fl-09-17/ http://www.hadit.com/forums/index.php?/topic/40974-va-fl-09-15/ http://www.hadit.com/forums/index.php?/topic/40975-va-fl-09-13/ http://www.hadit.com/forums/index.php?/topic/40797-va-fl-09-10e1/ http://www.hadit.com/forums/index.php?/topic/40796-va-fl-09-10/ http://www.hadit.com/forums/index.php?/topic/40795-va-fl-09-09/ http://www.hadit.com/forums/index.php?/topic/40976-va-fl-09-08/ 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Long Term Domestic Partner = Spouse?

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Perhaps someone could point me in the right direction.

I currently receive benefits for a 20% disability and have a pending claim for service connection that could result in 30% or greater.

My partner and I have been together over 10 years though we've not married for various reasons. My question is -- does a domestic partner (don't know whether that's the right term or not but after 50 boyfriend/girlfriend just doesn't seem to fit!) qualify me (us) for the "veteran + spouse" compensation rate?

We're in WA state in case that impacts things.

Thanks!

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18 answers to this question

Posted · Report post

IMHO, NO!

B6

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Posted · Report post

Do yourself a favor and get legally married. This will solve a host of potential problems. Common law marriage is a state-by-state thing. In Florida where I live it does not exist.

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Posted · Report post

When I applied to have my wife added, they wanted a copy of our marriage certificate, and copies of any divorces prior to our marriage. I also don't think they accept common law marriages, but I have been wrong before.

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Posted · Report post

most states don't recognize common law marriages and the federal govt quit recognizing them decades ago plain and simple you have to be legally connected before the VA will pay benefits and even legal same sex marriages are not recognized by the federal govt yet federal laws and rules trump state laws and Congress has not legalized it yet what state you live in is irrelevant in these situations

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Posted · Report post

x

x

x

The VA will recognize a "Registered Domestic Partner". Some States allow partners to file certain forms and "register". WA State is one of them.

See http://www.sos.wa.go...icpartnerships/

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Posted · Report post

I can't get this url to open or the other one from wings. Copy the url you want to use then go to http://www.tinyurl.com and paste into the box and it will convert long urls into short ones. It's a very handy tool to put in your tool box.

Here is a comprehensive explaination:

http://www.post3legi...er%20081209.htm

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Here is what it says about marriage.

How to Prove a Valid Marriage for VA Benefits: There are several reasons why a claimant might have to prove the validity of his or her marriage for the purpose of VA benefits. By far the most common reasons for needing to prove a marriage are:

(1) So that the veteran may receive additional compensation or pension benefits for the spouse as a dependent (see 38 U.S.C. § 1115); and

(2) So that an allegedly surviving spouse may be determined entitled to receive dependency and indemnity compensation (DIC) or death pension benefits. In either case, the rules are mostly the same, but to be determined a surviving spouse entails additional requirements, which are discussed below.

Definition of Spouse: A "spouse" is a "person of the opposite sex who is a wife or husband" of the veteran. See 38 U.S.C. § 101(31). In order to be a wife or a husband of a veteran a person must prove to VA that he or she and the veteran have (or had) a "valid" marriage. See 38 C.F.R. §§ 3.50(a), 3.1(j). A marriage can be valid either where the couple resided during the marriage, or where they resided when the right to VA benefits arose. Sanders v. Brown, 6 Vet. App. 17, 19 (1993); see also M21-1MR, Part III, subpart iii, 5.B.6 (a); M21-1MR, Part III, subpart iii, 5.C.12 (a).

Definition of Valid Marriage: In order to create a valid marriage, the two parties must have been "free to marry," and must have formed a "valid marriage." The "free to marry" requirement is determined by the law of the state in which the couple resides, but generally means that neither party was previously married, or, if they were, that the marriage was properly dissolved by death, divorce, or annulment, or determined to be void under state law. See M21-1MR, Part III, Subpart iii, Chapter 5, Section B, 5(a). Hopkins v. Nicholson, 19 Vet. App. 165 (2005). There are two primary ways that a couple can form a "valid" marriage (but, as explained in greater detail later in this article, for individuals trying to prove surviving spouse status, there may be a legal marriage even where there was no traditional marriage and where the couple did not have a recognized common law marriage):

Traditional Marriage: The first is the most common: traditional or ceremonial marriage. This is where a couple is married in a ceremony, whether that ceremony was religious in nature, or just a trip to the courthouse. In a traditional or ceremonial marriage, a certificate is issued by the state validating the marriage, and the marriage is officially registered by the state.

Common Law Marriage: The second primary way a couple can become "legally" married is through what is known as "common law" marriage. Again, the common law marriage can exist either in the state or country where the couple lived during the marriage, or in the state or country where the couple lived when the right to the benefits arose. See M21-1MR, Part III, subpart iii, 5.B.6 (a); M21-1MR, Part III, subpart iii, 5.C.12 (a). The rules for common law marriage differ from state to state and country to country, and some states and countries do not recognize common law marriage at all. See M21- 1MR, Part III, subpart iii, 5.C.12 (d). Common law marriage generally requires the couple to do some or all of the following: (1) live together for a certain period of time; (2) form an agreement to be married; and (3) hold themselves out to the public as husband and wife. The "agreement" can be explicit, or it can be inferred from the parties' conduct at the time. See M21-1MR, Part III, subpart iii, 5.C.12 (d). "Holding themselves out to the public as married" is generally the most important element in proving a common law marriage. It generally means that the couple represented themselves to the public as married, and/or that they were known in the community as a married couple. This can be established through statements of persons in the couple's community who knew the parties as a married couple, and/or through public documents (such as lease agreements, tax forms, employment records, utility bills, legal papers, etc.) in which the parties represented themselves as married. See M21-1MR, Part III, subpart iii, 5.C.12 (e)-(g).

Evidence Needed to Prove a Marriage: Generally, the VA will accept a written statement of both parties' marital history as proof of both the freedom of both parties to marry and the creation of a valid marriage. See 38 C.F.R. § 3.204; see also M21-1MR, Part III, subpart iii, 5.B.5©. This statement is usually included in an application for VA benefits (VA Form 21-526), as well as in the standard Declaration of Status of Dependents form (VA Form 21-686c).

Written Statement: The written statement must list all prior marriages and must contain the first and last names of any prior marriage partners; a statement as to how the prior marriage(s) terminated (divorce, death, etc.); the date the prior marriage(s) terminated (or at least the month and year); and the place(s) (city and state) where the prior marriage(s) were officially terminated. M21-1MR, Part III, subpart iii, 5.B.6 (a). As long as the statement has these details about any past marriages, and does not raise any particular questions as to the statement's accuracy, the VA will usually accept it as proof of marriage. M21-1MR, Part III, subpart iii, 5.B.5 (f).

When Additional Documents Are Needed: In certain circumstances, the VA will require that a claimant submit one or more documents to verify that a valid marriage took place and, where applicable, that any prior marriages were dissolved. These include cases in which the claimant does not reside in a state; the claimant's statement raises a question as to the validity of the marriage; there is conflicting information of record; or there is "reasonable indication" of fraud or misrepresentation. See 38 U.S.C. § 5124©; 38 C.F.R. § 3.204(a) (2).

What Additional Documents to Submit when Proof is Necessary: Where proof of marriage is required, a claimant should submit any one of the following documents to the VA. The following are listed by order of preference:

· A copy or summary of the public or ceremonial record of marriage;

· An official report from the military branch as to the marriage occurring during the veteran's service;

· An affidavit from the clergy member or magistrate who officiated at the wedding;

· The original certificate of marriage; or

· Affidavits or certified statements from two or more eyewitnesses to the ceremony.

In the event that none of the other documents are available, the claimant can submit any other secondary evidence which reasonably supports a belief that a valid marriage occurred. See 38 C.F.R. § 3.205(a); M21-1MR, Part III, subpart iii, 5.B.6©.

Documents to Submit to Prove Common Law Marriage: Claimants trying to prove a common law marriage should submit additional facts about the common law marriage and supplemental statements by two or more eyewitnesses. See 38 C.F.R. § 3.205(a) (6).

For Proof of Previous Divorce, Dissolution, or Annulment: Where the VA requests further proof of a previous divorce, dissolution, or annulment, the claimant should submit the decree of divorce, dissolution, or annulment. See 38 C.F.R. §§ 3.206 (divorce), 3.207(b) (annulment). A claimant alleging that a previous marriage was void should submit a certified statement explaining why the marriage was void along with evidence supporting that determination. See 38 C.F.R. § 3.207(a).

Definition of Surviving Spouse: A surviving spouse must prove that he or she was the valid spouse of the veteran at the time of the veteran's death. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). See Sanders v. Brown, 6 Vet. App. 17, 19 (1993), Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (claimant's burden of proof). Generally, this will require the surviving spouse to prove that he or she had a valid marriage in the exact same way he or she would prove it if the veteran were still living – by the rubric laid out above. However, there are both relaxed rules and additional rules for surviving spouses. First, we will explore the relaxed rule — the "deemed valid" marriage rule.

The Relaxed Rule for Surviving Spouses:

Deemed Valid Marriage—Relaxed Rule: In a "deemed valid" marriage, if it were not "for the existence of a legal impediment, a valid marriage would exist." See 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. As long as the claimant (the spouse) was unaware of the legal impediment, the marriage will be deemed valid for the purpose of VA benefits. 38 U.S.C. § 103(a); see also Dedicatoria v. Brown, 8 Vet. App. 441 (1995). A common example of what might be a deemed valid marriage is where the claimant lived with the veteran in what the claimant sincerely believed to be a valid "common law" marriage, but the state or country in which the couple lived did not recognize common law marriage. See VA Gen. Coun. Prec. 58-91 (July 7, 1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); Sandoval v. Brown, 7 Vet. App. 7, 8-10 (1994).

Requirements for a Deemed Valid Marriage: A claimant will not be able to qualify under the "deemed valid" marriage exception unless the following are ALL true: no legal spouse has already been awarded benefits as the veteran's surviving spouse (38 U.S.C. § 103(a); 38 C.F.R. § 3.52(d)); and either (a) the claimant lived with the veteran for at least one year immediately prior to the veteran's death, if the couple had no children, or (b) the claimant lived with the veteran for any length of time and the couple had ever had a child (either before or during the "marriage"). 38 U.S.C. § 103(a); 38 C.F.R. § 3.52(a).

The "Deemed Valid" Marriage Exception in Action: L'Amour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008): In L'Amour, the widow of a veteran filed a claim for DIC benefits. Her claim was denied by the VARO on the grounds that she and the veteran had only been married for nine days prior to his death, not the statutory minimum of one year. The widow appealed to the BVA, claiming that she and the veteran had lived together as husband and wife for many years prior to their actual marriage. Her appeal was denied by the BVA because the Philippines do not recognize "common law" marriage. The widow later requested that her claim for DIC be reopened, stating that she had had no knowledge of the law governing common law marriage in the Philippines and submitting evidence indicating that she and the veteran had believed themselves to be married. The new evidence submitted included a sworn affidavit, joint bank account records, a letter from a credit union, and a letter which the deceased veteran had written during his lifetime stating that he was supporting the widow. The BVA rejected all of the evidence as immaterial and irrelevant to whether the widow claimant's marriage could be deemed valid. The case was appealed to the CAVC and the CAVC affirmed the BVA decision. The widow appealed her case to the Federal Circuit. The Federal Circuit noted that under VA regulations, when marriage is invalid by reason of a legal impediment, it can still be "deemed valid." 38 U.S.C. § 103(a), 38 C.F.R. § 3.52. The Federal Circuit point out that the "deemed valid" exception can apply to a "lack of knowledge of a law prohibiting particular marriages." VA Op. Gen. Counsel Prec. 58-91, at 5 (June 17, 1991). The Federal Circuit also cited a nonprecedential CAVC case in explaining that the determination of a claimant's knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time the invalid marriage was contracted." Custodio v. Nicholson, 21 Vet. App. 410, 2006 WL 3007188, at *3 (Vet. App. 2006) (non-precedential single-judge decision). The CAVC's failure to consider the evidence that the widow was unaware of the legal impediment to her marriage required that the case be vacated and remanded.

Additional Requirements for Surviving Spouses: As mentioned above, there are some additional requirements that surviving spouses have to meet, above and beyond the requirements for spouses of living veterans. These requirements (which do not apply in all cases) are: the one-year marriage requirement; the continuous cohabitation requirement; and (in limited cases) the no remarriage requirement. See 38 U.S.C. § 101(3).

One-Year Marriage Requirement: The "one-year marriage" requirement states that, generally, a surviving spouse must have been married to a veteran for at least one year prior to the veteran's death in order to qualify for DIC or death pension. See 38 U.S.C. §§ 1102, 1304, 1318, 1541(f) (2); 38 C.F.R. § 3.54 (a) (1); see also VA Gen. Coun. Prec. 8-00 (Jul. 25, 2000). There are, however, several cases in which this requirement does not apply. They are the following: (a) if the marriage to the veteran occurred before or during the veteran's service (see 38 C.F.R. § 3.54); (b) if a child was born to the couple at any time (see 38 U.S.C. §§ 1102(a)(3), 1304(3), 1318©(2), 1541(f)(3); 38 C.F.R. § 3.54(a)(2)); © in the context of death pension, if the marriage took place before certain specified dates (see 38 U.S.C. § 1541(f)(1); 38 C.F.R. § 3.54(a) (3)); and (d) in the context of DIC, if the marriage occurred before the expiration of 15 years after termination of the period of service in which the injury or disease that caused the veteran's death was aggravated or incurred (38 U.S.C. §§ 1102(a)(1), 1304(1); 38 C.F.R. §§ 3.54(b), ©). This last exception to the one-year marriage requirement applies to DIC awarded under 38 U.S.C. § 1310 (claims based on service connection for the cause of death), but does not seem to apply where the surviving spouse is eligible for DIC under 38 U.S.C. § 1318 (due to the veteran's total disability from service-connected conditions for at least 10 years (or 5 years or 1 year, in certain cases) prior to death).

Continuous Cohabitation Requirement: The "continuous cohabitation" requirement does not require the surviving spouse and the veteran to have lived together for their entire lives. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b) (1). Any separations that had ended by the time of the veteran's death are irrelevant. The couple can also be separated at the time of the veteran's death provided one of the following is true: (a) the separation was due to the misconduct of, or procured by, the veteran (38 U.S.C. § 101(3)); (b) the separation was by mutual consent and there was no showing of an intent on the part of the surviving spouse to desert the veteran (38 C.F.R. § 3.53(b); Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007)); or © the claimant was not materially at fault in the separation. See Gregory v. Brown, 5 Vet. App. 108, 113 (1993); Westberry v. Principi, 255 F.3d 1377 (Fed. Cir. 2001). The first and last of these exceptions, can be quite similar in some cases.

The Continuous Cohabitation Requirement in Action: Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007) In Alpough, the veteran and the claimant were validly married, but had separated prior to the veteran's death. It was clear based on an earlier application for service connection (made while the veterans was alive), and on the claimant's application for DIC, that the two had mutually agreed to live separately because they "could not get along." Both the BVA and the CAVC held that the claimant could not be the veteran's surviving spouse because they were separated at the time of the veteran's death, and the separation was not due to the veteran's misconduct.

The widow appealed to the Federal Circuit. The Federal Circuit found that, typically, a surviving spouse must have had "continuous cohabitation" with the veteran from the date of the marriage to the date of the veteran's death. However, an exception exists when the separation was due to the veteran's misconduct OR was procured by the veteran, through no fault of the spouse. 38 U.S.C. § 101(3). The Federal Circuit held that the CAVC misinterpreted the exception by requiring a showing of misconduct by the veteran in order for the widow to qualify. The CAVC ignored the exception for separations "procured by" the veteran. Id. The Federal Circuit found that the statute was unclear on what sort of separation could be "procured by" the veteran and still not disqualify the surviving spouse, so it turned to the VA regulations. The Federal Circuit stated that the regulations directly addressed the issue of mutual separation, stating that so long as the separation was mutual and did not show intent on the part of the surviving spouse to desert the veteran, continuity of cohabitation exists. 38 C.F.R. § 3.53(b). According to the Federal Circuit, the key was whether the reason for the separation showed intent on the part of the surviving spouse to desert the veteran. The Federal Circuit then explored the meaning of desert. Using common law principles of family law, the Court found that generally a mutually agreed upon separation does not constitute desertion.

The Federal Circuit held that a mutual decision to separate is not considered desertion unless the separation was the result of misconduct or communication of a definite intent to end the marriage by the surviving spouse. Because the CAVC incorrectly interpreted the controlling statute, the case was remanded.

The "No Remarriage" Requirement: The "no remarriage" requirement has gone through many changes in its history. It is not addressed in this training outline. Information on rules relating to remarriage is discussed in NVLSP's Veterans Benefits Manual, published by Lexis Law Publishing, order information at http://www.nvlsp.org...ions/Bookstore/.

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well if Washington state recognizes common law marriages you should be in like flint

but from reading the definitions it shouldn't matter what state you live in if a man and a woman have been living together and portraying themselves as man and wife for more than one year have joint accounts etc then the spouse should qualify for benefits but as most of us know just because there are precedents available does NOT mean the local VARO won't still deny the claim and make the veteran or the spouse fight the appeals and wait for months or years to get their benefits they seem to take perverse pleasure in making veterans and their spouses fight these issues many times I think it is they are just hoping the people will get frustrated and quit the claim

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IMHO, I think Federal Laws trumps State Laws.....with that being said. I still think the answer is NO! I could be wrong......

JMHO,

B6

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If you don't have traditional marriage then you better chose wisely about what state you reside. If you want to protect yourself and your spouse from all sorts of future problems just get married. There was a case in Florida a few years ago where a cop was killed on duty. The cop's domestic partner did not get her partner's survivor pension.

The long term partner got almost nothing. This was a unique situation but the rules are the same for all domestic partners. What happens if you die in a state that does not recognized domestic partnerships? I do know that all hell will break loose if there is any money involved in the estate. Claims will be made. Lawyers will be paid. It could go on for years. I was the executor in two contested estates. You don't want that job. A legal marriage makes it so much easier. If there is no legal marriage then on your or your partner's dying bed other family members can insert themselves into the process.

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Hope this isn't derailing the thread, but while we're on the subject of valid marriages, let me chime in about valid divorces.

See that "free to marry" statement? It's really important. Many years ago my dear VN vet brother married for the second time to an a bizarre woman. She seemed so sweet at first but she was a nightmare of epic proportions and he had many a miserable year with her before he left her for the last time. He struggle for years to get her to sign the divorce papers, and she refused and refused, until she suddenly disappeared, presumably back to her home state (no foul play, she told others she was leaving). He went to an attorney in the state he had moved to who advised him that he could get divorced as long as he could prove he'd attempted to contact her with no results. He went through a long, expensive process to prove that he had made every attempt to serve/contact her. Eventually he was granted the divorce and he remarried a nice lady.

Fast forward to his death. His former wife apparently had been keeping tabs on him from afar, because he wasn't in the ground a week before her attorney had contacted his employer (big international corporation) AND the VA to file for benefits. She must have been working on this for a while (he died slowly of AO related cancer) because her attorney had his ducks in a row and was able to produce evidence that his divorce was NOT VALID, and that she was still his legal wife. I don't know if it was based on proof of his having knowledge of her whereabouts or if it had something to do with the fact that they had never co-habitated in the state he filed for divorced.

The last I heard of my brother's widow (I don't keep in touch with family much these days) was that she had been denied all widow's benefits because her subsequent marriage wasn't a valid marriage due to his not having a valid divorce. All of his benefits when to that witch who'd made his life hell, not to the woman who loved and nursed him and was by his side at the end.

So before any of us get married, let's be sure the old divorces are rock solid (why am I assuming that most of us have been divorced?)

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IMHO, I think Federal Laws trumps State Laws.....with that being said. I still think the answer is NO! I could be wrong......

JMHO,

B6

B6, in this case I think you may be incorrect:

The Relaxed Rule for Surviving Spouses:

Deemed Valid Marriage—Relaxed Rule: In a "deemed valid" marriage, if it were not "for the existence of a legal impediment, a valid marriage would exist." See 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. As long as the claimant (the spouse) was unaware of the legal impediment, the marriage will be deemed valid for the purpose of VA benefits. 38 U.S.C. § 103(a); see also Dedicatoria v. Brown, 8 Vet. App. 441 (1995). A common example of what might be a deemed valid marriage is where the claimant lived with the veteran in what the claimant sincerely believed to be a valid "common law" marriage, but the state or country in which the couple lived did not recognize common law marriage. See VA Gen. Coun. Prec. 58-91 (July 7, 1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); Sandoval v. Brown, 7 Vet. App. 7, 8-10 (1994).

Requirements for a Deemed Valid Marriage: A claimant will not be able to qualify under the "deemed valid" marriage exception unless the following are ALL true: no legal spouse has already been awarded benefits as the veteran's surviving spouse (38 U.S.C. § 103(a); 38 C.F.R. § 3.52(d)); and either (a) the claimant lived with the veteran for at least one year immediately prior to the veteran's death, if the couple had no children, or (b) the claimant lived with the veteran for any length of time and the couple had ever had a child (either before or during the "marriage"). 38 U.S.C. § 103(a); 38 C.F.R. § 3.52(a).

The "Deemed Valid" Marriage Exception in Action: L'Amour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008): In L'Amour, the widow of a veteran filed a claim for DIC benefits. Her claim was denied by the VARO on the grounds that she and the veteran had only been married for nine days prior to his death, not the statutory minimum of one year. The widow appealed to the BVA, claiming that she and the veteran had lived together as husband and wife for many years prior to their actual marriage. Her appeal was denied by the BVA because the Philippines do not recognize "common law" marriage. The widow later requested that her claim for DIC be reopened, stating that she had had no knowledge of the law governing common law marriage in the Philippines and submitting evidence indicating that she and the veteran had believed themselves to be married. The new evidence submitted included a sworn affidavit, joint bank account records, a letter from a credit union, and a letter which the deceased veteran had written during his lifetime stating that he was supporting the widow. The BVA rejected all of the evidence as immaterial and irrelevant to whether the widow claimant's marriage could be deemed valid. The case was appealed to the CAVC and the CAVC affirmed the BVA decision. The widow appealed her case to the Federal Circuit. The Federal Circuit noted that under VA regulations, when marriage is invalid by reason of a legal impediment, it can still be "deemed valid." 38 U.S.C. § 103(a), 38 C.F.R. § 3.52. The Federal Circuit point out that the "deemed valid" exception can apply to a "lack of knowledge of a law prohibiting particular marriages." VA Op. Gen. Counsel Prec. 58-91, at 5 (June 17, 1991). The Federal Circuit also cited a nonprecedential CAVC case in explaining that the determination of a claimant's knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time the invalid marriage was contracted." Custodio v. Nicholson, 21 Vet. App. 410, 2006 WL 3007188, at *3 (Vet. App. 2006) (non-precedential single-judge decision). The CAVC's failure to consider the evidence that the widow was unaware of the legal impediment to her marriage required that the case be vacated and remanded.

In other words, if the marriage partners THOUGHT that they were, in fact, in a "common-law marriage", then ignorance of the particular state's law AGAINST common-law marriages does not, in fact, keep them from assuming a common-law marriage does exist.............They think that it does, and that is what matters.

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Thanks LarryJ.....I learned something new today.

B6

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I've been reading hundreds of claims regarding DIC (2008 thru 2010). EVERY one of them where there was a domestic partner and or common law wife was denied benefits. It's hard enough to get the benefits due a veteran when everything is legal. I would also advise just going to court house and getting married. Hope this helps.

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I've been reading hundreds of claims regarding DIC (2008 thru 2010). EVERY one of them where there was a domestic partner and or common law wife was denied benefits . It's hard enough to get the benefits due a veteran when everything is legal. I would also advise just going to court house and getting married. Hope this helps.

apparently not ALL of them

VA Gen. Coun. Prec. 58-91 (July 7, 1991); Colon v. Brown, 9 Vet. App. 104, 107-08 (1996); Sandoval v. Brown, 7 Vet. App. 7, 8-10 (1994)

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Common Law marriages are recongized by the VA. They have to be from a state that common law marriages are recgonized.

Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize common-law marriages contracted within their borders. In addition, five states have "grandfathered" common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order.

Further:

3.50 Spouse and surviving spouse.

(a) Spouse. ''Spouse'' means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j).

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Common Law marriages are recongized by the VA. They have to be from a state that common law marriages are recgonized.

Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize common-law marriages contracted within their borders. In addition, five states have "grandfathered" common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order.

Further:

3.50 Spouse and surviving spouse.

(a) Spouse. ''Spouse'' means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j).

Thanks Sharon! That's what I was thinking! Glad to see it in black and white! Excellent post!

B6

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