I am a payee for my adult daughter 26 who lives in California. (I live in Texas) She has bi-polar amongst other mental health issues. She recently had a baby in November with her boyfriend who now lives with her. I was contacted in February to recertify my daughter for benifits. The person at SSI said they are going to count her and her boyfriend as common law marriage and will have to add his income. My question is since she lives in the State of California are they allowed to do that? I really dont think it will make a difference in the long run as he has makes less then 400.00 a month. I just dont want her independance she has worked so hard to obtain to be lost because of the result of her having a baby. What if he leaves does he have to recertify again?
1) Although there is no 'common law' marriage in California, if your daughter and her boyfriend hold themselves out as married, SSA will try to claim it is the equivalent of a marriage - she can fight this (so maybe Legal Aid Services in her area can represent her on this matter) but it will depend on the facts and the evidence of her case.
2) This is an area where SSA tries to have their cake and eat it too - let's presume they do decided your daughter and her boyfriend are considered married by SSA, then he passes away, if your daughter tries to collect some type of spousal benefit from SSA watch as SSA claims no valid marriage existed so they do not have to pay anything.
3) If they considered them married and he lives there then his income will be 'deemed' to your daughter, after some basic deductions from his income they will count approx. $1 against her for every $2 he makes. Also his resources will count against her, so if he had $3000+ in the bank or an extra car or property or whatnot then she would lose eligibility for SSI.
4) Whenever her personal household financial circumstances change she should report it to SSA - so if SSA is counting his income against her then if he leaves she needs to report is so that her benefits might increase once his income is removed from the equation.
a common law marriage can occur only when:
a heterosexual couple lives together in a state that recognizes common law marriages
for a significant period of time (not defined in any state)
holding themselves out as a married couple -- typically this means using the same last name, referring to the other as "my husband" or "my wife" and filing a joint tax return, and
intending to be married.
Unless all four are true, there is no common law marriage.
Contact Legal Aid Services, your local or state bar association, or NOSSCR to find a Social Security attorney in your area, look for one offering a free no-obligation initial consultation (most do) then meet with one or more and sign up with one you are comfortable with.
NOSSCR Lawyer Referral Service - For help in finding attorney representation, contact its lawyer referral service during Eastern business hours:
Disclaimer Information on this site is provided by Brian Scott Wayson as general information, not legal advice, and use of this information does not establish an attorney-client relationship. If you have questions about your specific situation, please call an attorney.
My colleague has again given a good response.
I assume your daughter is not really married. So, here is what I suggest you do: Have daughter swear out an affidavit that she is not CL married, and that she is living with the father of her child. Have father of child do affidavit saying same type of thing - but each should do their own with an attorney and use their own words. Identify when they met and that they have never been legally or CL married (note that many states no longer allow CL marriage and so if California is one such state, they cannot possibly be CL married if they met and got tegether after that date). Provide the affirdavits to SSA and that should start correcting the problem.
However, because they are living together, she could still face a 1/3 reduction oin benefits if the father is working and helping provide some of the essentials like food, housing, utilities, etc. Still a 1/3 reduction is far better than losing the entire check.
I hope this helps. Good luck to you!
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I agree with my colleagues. Common Law marriages are not recognized in many states nowadays.
This response is meant to be information only and should not be considered to be legal advice. This information is not meant and should not be construed to be the formation of an attorney client relationship. I practice Virginia Workers compensation law and Social Security Disability law.
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