Citation Nr: 18148653 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-10 742 DATE: November 8, 2018 ORDER Entitlement to recognition of the appellant as the Veteran’s surviving spouse for purposes of establishing eligibility to VA death benefits is denied. FINDINGS OF FACT 1. The appellant and the Veteran married twice and the evidence established that they last divorced in 1986. 2. Although there is evidence to indicate that the appellant and Veteran continued to live together as husband and wife after their divorce in 1986, both the Veteran and appellant report that they did not continuously cohabitate until the Veteran’s death in November 2011. 3. The appellant has not shown that she had a common law marriage with the Veteran proved through a judicial, administrative or other proceeding, or that she commenced a proceeding to prove such marriage, within two years of their separation as required by Texas law, and she has not provided sufficient evidence to rebut the presumption that they did not agree to enter into a common law marriage. 4. The Veteran remarried in October 2011 and his new spouse from that marriage has been recognized by VA has his surviving spouse. CONCLUSION OF LAW The criteria for recognition as the Veteran’s surviving spouse for the purpose of establishing eligibility to VA death benefits have not been met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from March 1976 to March 1979. In addition, prior to that, the Veteran served in the U.S. Army Reserve and had an initial period of active duty for training from September 1973 to February 1974. The Veteran died in November 2011. The appellant is seeking VA death benefits as the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant and her brother appeared and testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge in April 2017. A transcript of this hearing is associated with the claims file. Entitlement to recognition as the Veteran’s surviving spouse for purposes of establishing eligibility to VA death benefits The appellant contends that she should be recognized as the Veteran’s surviving spouse because, although her and the Veteran were divorced in 1986, she reports they continued to live together as husband and wife until 2003 when she left him for her own safety because he had become verbally and physically abusive toward as a result of his posttraumatic stress disorder. Thus, she essentially contends her and the Veteran had a common law marriage that was established after their 1986 divorce and that they should be considered to have cohabitated until his death because, although they separated in 2003, it was due to the misconduct of the Veteran without fault by her. See Board hearing transcript, pp. 4-12. The claims file does not contain any official records relating to the appellant’s marriage to or divorce from the Veteran. On a June 1987 VA Declaration of Marital Status, the Veteran reported that he married the appellant in March 1976 and divorced her in October 1985. However, on a May 1991 VA Form 21-526 application for service-connected compensation, the Veteran reported he married the appellant in March 1983 and was still married to her (he also stated he married her twice so presumably this is the date of their second marriage). Thereafter, an August 1999 Report of Contact with the Veteran when he was contacted to update his dependents shows he reported he was not married. In November 2011, the Veteran submitted a Declaration of Status of Dependents on which he reported he remarried in October 2011 to a different person. He also reported that he had married the appellant in 1964 and divorced her in 1973. The Veteran died in November 2011. Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a Veteran. 38 U.S.C. § 1102; 38 C.F.R. § 3.54. A “surviving spouse” is defined as a person 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 lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. For VA benefit purposes, a “spouse” is a person who is a husband or wife of a veteran. A marriage “means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued.” 38 C.F.R. § 3.1(j). 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. 38 C.F.R. § 3.53(a). 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. 38 C.F.R. § 3.53(a). The Board acknowledges that there is some evidence in the claims file to support the appellant’s contention that she and the Veteran held themselves out as married after their divorce in 1986, significantly the Board hearing testimony and the Veteran’s statement in his June 1991 application for service-connected compensation. However, the Board finds the preponderance of the evidence weighs against her claim that she should be recognized as the Veteran’s surviving spouse. The Veteran reported to VA in August 1999 that he was no longer married, which is inconsistent with the appellant’s report that they were together until 2003. The Veteran’s failure to report to VA that he continued to be married to the appellant indicates his belief that he did not have a common law marriage with the appellant as early as August 1999. Furthermore, the Veteran remarried in October 2011 and he immediately reported this marriage to VA. A month after the Veteran’s death, his new spouse filed for VA death benefits. In a December 2012 Administrative decision, VA determined that the marriage between the Veteran and this new spouse was valid for VA purposes. Therefore, the Veteran’s new spouse was determined to be his surviving spouse and she was awarded Dependency and Indemnity Compensation in December 2012. At the appellant’s Board hearing, she acknowledged that the Veteran remarried but stated it was on his death bed. She stated he never lived with this person that he married. However, the evidence of record shows that his new spouse is the mother of two of his children whom he reported on his May 1991 application for compensation to have been born in 1985 and 1988 and who carry his last name ( verification with the Social Security Administration shows their births were in 1986 and 1989). He also reported that these two children were in the custody of their mother (his new spouse) at that time. The Veteran received dependency allowances for their two children starting in August 2000 and he reported that he paid this money to them for their support. Moreover, his new spouse reported on her application for death benefits that she lived with the Veteran throughout their marriage. She further stated that she was not aware of any reason why her marriage to the Veteran might not be legally valid at the time of her marriage to him. Finally, the Veteran’s death certificate shows his new spouse as his surviving spouse. It was based on these facts that it was determined that by VA that the Veteran’s new spouse was his surviving spouse. The Board finds that this evidence shows the Veteran and his new spouse had a long-term relationship that produced two children, one of which was born around the time of his second divorce from the appellant and the second one just two years later when the appellant was reportedly still living with the Veteran as husband and wife. Given that the appellant admits that she divorced the Veteran in 1986 because of adultery and the evidence that he was involved with his new spouse from 1986 to 1989 given the births of their children, the evidence raises the question of whether the Veteran had the intent to enter into a common law marriage with the appellant. In addition, the appellant testified at the Board hearing that neither she nor the Veteran filed for divorce to dissolve the common law marriage. However, a review of Texas law does not indicate that such is required. Rather, the law provides for a rebuttable presumption that the parties did not enter into an agreement to be married if a proceeding (judicial, administrative or other) to prove the marriage had not been commenced before the second anniversary of the date on which the parties separated and ceased living together. Tex. Family Code § 2.401(b) (2017), https://statutes.capitol.texas.gov/Docs/FA/htm/FA.2.htm#E. Therefore, Texas law requires the common law marriage (or “informal” marriage as it is called in Texas) be proven (or at least a proceeding be commenced to prove it) within two years of the parties’ separation otherwise it is presumed that there was no marriage. Although the law does not preclude establishing a common law marriage, it makes it more difficult to do so because the party would have to rebut the presumption first. The appellant submitted oral testimony from herself and her brother that she lived with the Veteran from the time of their divorce in 1986 until she left him in 2003 and that, during that time, they held themselves out to the public as being husband and wife. However, she also testified that she filed individual tax returns and was did not know for sure whether they had any joint bank accounts or insurance policies during that time. Although she stated that they built a house together, she has not provided any documentation to show that she had any joint property interest in it with the Veteran. Such lack of joint activity and property speaks against finding there was an informal marriage between the appellant and Veteran. Moreover, although the Veteran stated in the June 1991 application for service-connected compensation that he and the appellant were still married, evidence that he had another relationship that produced children in 1986 and 1989 is inconsistent with finding that he intended to enter into an agreement of informal marriage with the appellant. Furthermore, his report to VA in August 1999 that he was no longer married is inconsistent with the appellant’s report that they remained together until 2003 when she left him. Finally, his remarriage in October 2011 indicates the Veteran did not believe he was married to the appellant. After considering all the evidence, the Board finds that the preponderance of the evidence is against finding that the appellant should be recognized as the Veteran’s surviving spouse for purposes of establishing eligibility to VA death benefits. The appellant admits her relationship to the Veteran terminated by divorce in 1986 and that her continuing relationship with him ended prior to his death in 2003. She has not shown that she proved through a proceeding that she had an informal (i.e., common law) marriage with the Veteran, or that she commenced a proceeding to prove such marriage, within two years of their separation as required by Texas law. Therefore, under Texas law, there is a rebuttable presumption that the appellant and Veteran did not enter into an agreement to be married. The evidence is insufficient to rebut the presumption that the appellant and the Veteran did not enter into an agreement to marry. Moreover, the Veteran remarried prior to his death and his new spouse has been recognized by VA as his surviving spouse. The appellant has not shown why she should be recognized as the Veteran’s surviving spouse instead. Accordingly, entitlement to recognition of the appellant as the   Veteran’s surviving spouse for purposes of establishing eligibility to VA death benefits is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow