Citation Nr: 18153846 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 11-02 385 DATE: November 28, 2018 ORDER Recognition of V.G. as the Veteran’s dependent spouse for Department of Veterans Affairs (VA) purposes is denied. FINDINGS OF FACT 1. The Veteran has resided in Texas since 1992. 2. In May 1992, a Texas court entered a judgment of dissolution of marriage between the Veteran and her former spouse, J.N. 3. In February 1993, the Veteran resided in Texas and married R.S. under Texas common law. 4. The Veteran’s marriage to R.S. was never legally terminated under Texas law. 5. The Veteran’s marriage to V.G. is void. CONCLUSION OF LAW The criteria for recognition of V.G. as the Veteran’s dependent spouse for VA purposes have not been met. 38 U.S.C. §§ 1115, 5107, 5124 (2012); 38 C.F.R. §§ 3.1(j), 3.4, 3.204, 3.205 (2017); Tex. Fam. Code §§ 1.102, 2.401, 6.202 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from April 1984 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 decision of the VA Regional Office (RO) in Houston, Texas. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to recognition of V.G. as the Veteran’s dependent spouse for VA purposes. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. Here, the Veteran contends that she is eligible for additional dependency benefits for her current spouse, V.G. A “spouse” is defined for VA purposes as a person whose marriage to the veteran is 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 right to benefits accrued. 38 C.F.R. §§ 3.1(j), 3.50(a). Under 38 C.F.R. § 3.1(j), “marriage” means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. A valid marriage may be established by various types of documentary evidence together with the claimant’s certified statement concerning the date, place, and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). When the claimant’s statement concerning marriage conflicts with other evidence of record, additional evidence is required to accept a marriage as valid or as dissolved. 38 C.F.R. § 3.204(a)(2). Where it is necessary to determine if a prior marriage was dissolved due to conflicting evidence in the record, proof of termination of a prior marriage can be shown by proof of death or a certified copy or certified abstract of a final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). It is pertinent to note that current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, or death of a dependent. See 38 U.S.C. § 5124 (2012); 38 C.F.R. § 3.204(a)(1) (2017). There is no indication of a statement on its face that raises a question of its validity, nor is there a reasonable indication, in the claimant’s statement or otherwise, of fraud or misrepresentation of the relationships in question. 38 U.S.C. § 5124(c) (2012); 38 C.F.R. § 3.204(a)(2) (2017). Here, the Veteran’s service-connected disabilities are rated at least 30 percent from July 2, 1992. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents has been met since July 2, 1992. 38 U.S.C. § 1115. By way of background, the Veteran has been married multiple times. Her first marriage, to J.N., ended in divorce in May 1992. See May 1992 Decree of Divorce. The Veteran reported that she then married R.S. under Texas common law. See February 2008 VA Form 21-686(c), Declaration of Status of Dependents; April 2008 VA Form 21-686(c); May 2008 VA Form 21-686(c); October 2008 VA Form 21-4170, Statement of Marital Relationship; April 2009 statement from Veteran; October 2011 VA Form 21-686(c); and December 2014 VA Form 21-686(c). She contends that she divorced R.S. prior to her marriage to V.G. under Texas common law. Id. Since at least 1992, the Veteran has resided in the state of Texas. Id. Under Texas law, a marriage of a man and woman may be proved by evidence that the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and they represented to others that they were married. Tex. Fam. Code § 2.401(a)(2). However, a person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party ot the informal marriage or declaration of an informal marriage, as applicable. Tex. Fam. Code § 2.401(d). There are two presumptions in Texas Family Code that are relevant to the facts of this case. First, if a proceeding to establish the existence of a common law marriage is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that there was no agreement to be married. Tex. Fam. Code § 2.401(b). Second, “[w]hen two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.” Tex. Fam. Code § 1.102. Texas recognizes common-law marriage, but does not recognize common-law divorce or annulment. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981). A common-law marriage, like a ceremonial marriage, can terminate only by death, divorce, or court-ordered annulment. Id. In addition, a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. Tex. Fam. Code § 6.202. However, the later marriage that is void under. § 6.202 becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. Id. The effect of these presumptions is to force the party against whom they operate to produce evidence to negate the presumptions. See Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993). The party with the burden of rebutting the presumptions must come forward with more than a scintilla of evidence, or the presumptions will operate to disprove the common-law marriage as a matter of law. See Amayé v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). As such, the questions in this case are whether the Veteran was properly married to R.S. under Texas common law and, if so, whether the Veteran’s marriage to R.S. was properly terminated prior to her common law marriage to V.G. Here, the Veteran contends that she married R.S. under Texas common law in December 1992. See October 2011 VA Form 21-686c. In July 2009, the Veteran’s son stated that the Veteran had a common law marriage to R.S. in December 1992. The Veteran went to jail in 1995 and never saw R.S. again. In a letter received by VA in July 2009, the Veteran’s daughter stated that the Veteran lived with her common law husband, R.S., in December 1992. The Veteran’s daughter would visit the Veteran and R.S. at their home. The Veteran lived with R.S. until she had a fire in November 1995 and was subsequently jailed. While the Veteran was jailed, she lost contact with R.S. and no responses to her letters were ever received. Based on this evidence, the Board finds that the Veteran was married to R.S. under Texas common law, as the evidence reflects that the Veteran and R.S. cohabitated and represented to others that they were married. See Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993) (holding that agreement to be married can be proven circumstantially by proof of cohabitation and representations to others that the couple is married); Small v. McMaster, 352 S.W.3d 280, 282-83 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“The existence of an informal marriage is a fact question....”); Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that testimony of a party of an agreement to be married was more than a scintilla of evidence of agreement). The record contains inconsistent evidence regarding whether the Veteran’s common law marriage to R.S. was terminated by death, divorce, or court-ordered annulment, as is required under Texas law. See Estate of Claveria, 615 S.W.2d at 167. In February 2008, April 2008, and May 2008, the Veteran stated that her marriage to R.S. terminated in common law separation. See February 2008, April 2008, and May 2008 VA Forms 21-686(c). In January 2011, the Veteran stated that her marriage to R.S. ended with his death. See January 2011 VA Form 21-4170, Statement of Marital Relationship. In October 2011, the Veteran stated that her marriage to R.S. terminated in “legally separated [sic] and remarried.” See October 2011 VA Form 21-686(c). In a separate VA Form 21-686(c) dated October 2011, the Veteran stated that her marriage from R.S. ended in divorce. In a June 2014 VA Form 21-686(c), the Veteran did not even list her marriage to R.S. In December 2014, the Veteran again stated that her marriage to R.S. ended in divorce. See December 2014 VA Form 21-686(c). Based on this conflicting evidence, the RO requested proof of termination of the Veteran’s marriage to R.S., pursuant to 38 C.F.R. § 3.205(b). See October 2008 Development Letter. Unfortunately, the Veteran has not submitted any proof of termination of her marriage to R.S. To the contrary, in April 2009, the Veteran stated that she had no legal documents related to her marriage to R.S. Based on this evidence, the Board finds that the Veteran’s marriage to R.S. has not been terminated under Texas law. As the Veteran’s marriage to R.S. has not been terminated under Texas law, her current common law marriage to V.G. is void under Texas law. Tex. Fam. Code § 6.202. Accordingly, the preponderance of the evidence is against recognition of V.G. as the Veteran’s dependent spouse for VA purposes. Therefore, the benefit-of-the-doubt doctrine is not applicable and recognition of V.G. as the Veteran’s dependent spouse for VA purposes is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel