20 C.F.R. 404.1101

SSR 80-2

The claimant married the worker on September 23, 1975, and lived with him until he died on July 13, 1977, in Denver Colorado. When she filed her application for mother's benefits, the claimant indicated that her husband had previously been married in December 1968. She submitted papers showing that this marriage had ended in divorce on April 13, 1971 in Denver, Colorado. The claimant, however, was unaware, until after her husband's death, that he had also been married under a different name in 1959 and that this marriage had apparently never terminated. As required by Colorado statute, the claimant had a good faith belief in the existence of a valid marriage between herself and the worker at its inception and continuing until his death; and she cohabited with him during this time. Held, the claimant is the worker's putative spouse under Colorado law.

A question has been raised as to whether a putative marriage can be established between the claimant and the worker, who used one name when he married his first wife and a different name when he married his second and third wives. This issue must be resolved because the claimant has filed an application for mother's benefits on the worker's earnings record. One of the requirements for entitlement to mother's benefits is that the claimant be the worker's widow. If a putative marriage can be established between the worker and tel claimant under Colorado law, the claimant will qualify as the worker's widow.

The worker lived in Texas between 1959 and 1963. he married his first wife in 1959 and they separated in late 1963. Three children were born of this marriage. A search of divorce records in Texas and New Mexico failed to uncover a decree terminating the marriage of the worker and his first wife.

The double identity of the worker has been attested to by the sister of the worker's first wife. In about 1967, she learned that the worker had left his first wife and their children without any express intent of returning. In about 1973, the sister moved to Denver, Colorado. After taking up residence there, she met the worker by coincidence. Although he identified himself under the name he used when he used when he married his second and third wives, he admitted that he used to live with her sister as her husband.

The worker married his second wife in December 1968. She obtained a divorce from him in the Denver, Colorado District Court on April 13, 1971. The worker then married the claimant on September 23, 1976. He died in Denver some ten months later on July 13, 1977.

The claimant's application for mother's benefits indicates her knowledge of the worker's second marriage, and she submitted divorce papers showing that this marriage had ended. The claimant, however, was unaware of the worker's first marriage. She stated that the worker had shown her the divorce paper terminating his second marriage and that she though her marriage to him was valid. The claimant also submitted a copy of a divorce decree which shows that her previous marriage terminated on October 2, 1968.

Colorado Rev. Statute 1973: § 14-2-111 sets forth the requirements for finding a putative marriage. It provides:

"Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. Children born of putative spouses are legitimate. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited under section 14-2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice."

The above-quoted Colorado statute requires that the person claiming a putative marriage must have had a good faith belief that he or she was legally married to his or her "spouse" and that the status of putative spouse terminates when he or she has knowledge that he or she is not legally married. It also requires that the parties have cohabited during this time.

The information provided by the claimant indicates that she had a good faith belief in the existence of a valid marriage between herself and the worker. Her application reflects that she knew of the worker's second marriage and divorce. There is no indication that the claimant acquired knowledge before the worker's death that they were not legally married. Her belief that her marriage to the worker was valid may have been strengthened by her having seen his divorce papers from his second wife. The claimant was free to marry by virtue of her divorce from her previous spouse, and she and the worker cohabited until his death.

Accordingly, the determination that the claimant is the putative spouse of the worker is legally justifiable.

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