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M21-1, Part III, Subpart iii, Chapter 5, Section H – Marriage of a Child

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2

1.  Effect of a Child’s Marriage


Introduction

This topic contains information about the effect of a child’s marriage, including

Change Date

July 10, 2018

III.iii.5.H.1.a.  Requirement That a Child Be Unmarried

Under 38 CFR 3.57, a person must be unmarried to qualify as a child for Department of Veterans Affairs (VA) purposes.  Therefore, a person of any age who marries ceases to be a child for VA purposes.

III.iii.5.H.1.b.  When to Take Action on a Report of a Child’s Marriage

Take action subject to the applicable provisions of this section after receiving
  • a statement from a beneficiary with the month and year of a child’s marriage, and/or
  • evidence showing the marriage of a child to or for whom VA is paying Survivors Pension, compensation, or Dependency and Indemnity Compensation.
Reference:  See 38 CFR 3.213 for more information regarding acceptable statements of changes in a dependent’s status.

III.iii.5.H.1.c.  Considering the Inferred Marriage of a Child

General Counsel has held there is no basis for inferring a child’s marriage based on the child’s cohabitation with another person.  However, if the child cohabits with another person in a jurisdiction recognizing common law marriage, it is possible to find that the child has entered into a common law marriage.
Reference:  For more information on establishing a common law marriage against an individual’s will, see M21-1, Part III, Subpart iii, 5.C.6.

III.iii.5.H.1.d.   Effective Date for Adjusting Benefits Because of a Child’s Marriage

The table below describes the effective date for adjusting benefits because of a child’s marriage.
If the child …
Then …
is entitled to benefits
  • in his/her own right, or
  • as an apportionee, receiving payments directly or through a fiduciary
discontinue his/her benefits effective the first day of the month during which the marriage occurred.
Reference:  For more information on discontinuing the award, see 38 CFR 3.500(n)(1).
  • is a dependent on another person’s award, and
  • married prior to October 1, 1982
remove the child from the award effective the first of the year following the year during which the marriage occurred.
  • is a dependent on another person’s award, and
  • married on or after October 1, 1982
remove the child from the award effective the first of the month following the month during which the marriage occurred.
is a dependent on a Veteran’s or surviving spouse’s Section 306 or Old Law Pension award
remove the child from the award effective the first of the year following the year during which the marriage occurred.
Note:  For more information on procedures for award adjustments, see the VBMS-Awards User Guide.

III.iii.5.H.1.e.  Adjusting Survivors Benefits Because of a Child’s Marriage

Use the table below to adjust survivors benefits because of a child’s marriage.
If …
Then …
  • a surviving spouse is receiving payments on account of the married child, or
  • the married child is receiving an apportioned share of a surviving spouse’s award
reduce or discontinue the surviving spouse’s award according to the instructions in M21-1, Part III, Subpart iii, 5.L.4.
other children are receiving apportioned awards
make adjustments in separate awards to other children (no surviving spouse entitled) effective the date of discontinuation of the married child’s award per 38 CFR 3.651, except as provided for reapportionment of awards to other apportionees per M21-1, Part III, Subpart v, 3.B.6.
Note:  The adjustment of the remaining children’s rates due to the loss of a child is one of the few occasions an increase may be made in a Section 306 or Old Law Pension rate.
References:  For information on

2.  Termination of a Child’s Marriage


Introduction

This topic contains information on the termination of a child’s marriage, including

Change Date

July 10, 2018

III.iii.5.H.2.a.  Requirements Regarding the Reestablishment of Entitlement Following the Termination of a Child’s Marriage

VA may pay benefits to or for a child that married as long as the marriage was
  • terminated after November 1, 1990, and
  • declared void or annulled.
Exception:  For marriages terminated prior to November 1, 1990, VA may pay benefits to or for the child as long as the marriage was
  • terminated by death, or
  • dissolved by divorce decree.
References:  For information on

III.iii.5.H.2.b.  Obtaining Evidence Regarding the Termination of a Child’s Legal Marriage

After receiving notice that the legal marriage of a child has been terminated, request the following evidence if there is a possibility that VA may be able to pay benefits to or for the child:
  • a statement from the child indicating where, when, and how the marriage was dissolved, to include an indication of whether the marriage was considered void
  • a statement as to whether or not the child ever filed an application for or received VA benefits as the child of another Veteran, and
  • a copy of the final decree of annulment, if the child’s marriage was annulled.
Important:  If the child has received benefits as the child of another Veteran, the statement must include the name and VA claim number of the other Veteran.
Note:  Determine the effective date per the information in M21-1, Part III, Subpart iii, 5.H.2.e.

III.iii.5.H.2.c.  Determining Whether a Child’s Marriage Is Void

Follow the steps in the table below to determine whether a child’s marriage is void.
Step
Action
1
Fully develop the facts surrounding the alleged void marriage.  This includes obtaining statements from parties to the “marriage.”
2
Submit the case to Regional Counsel for a legal opinion as to whether or not the marriage is void.
Reference:  For more information on when to obtain an opinion from Regional Counsel, see M21-1, Part III, Subpart iii, 5.A.3.d.
3
Did Regional Counsel declare the marriage void?
Note:  No administrative decision is required.
Reference:  For more information on determining whether a marriage is void, seeM21-1, Part III, Subpart iii, 5.B.6.

III.iii.5.H.2.d.  Determining Whether a Child’s Marriage Has Been Annulled

Follow the steps in the table below to determine whether a child’s marriage has been annulled.
Important:  A finding that an annulment was fraudulently obtained renders the annulment invalid for VA purposes.
Step
Action
1
  • Request a copy of the court decree of annulment.
  • Determine whether there is any evidence indicating fraud in obtaining the annulment.
2
Is there evidence that indicates there was fraud in obtaining the annulment?
  • If yes, go to Step 3.
  • If no,
    • accept the decree as evidence of termination of the marriage, and
    • determine the effective date of an award or increased award of benefits per the information in M21-1, Part III, Subpart iii, 5.H.2.e.
3
Initiate full development to include requesting
  • copies of the
    • petition to the court for annulment, and
    • answer to the petition, and
  • a transcript of the testimony.
4
After development is complete, ask Regional Counsel for an opinion as to the legal effect of the alleged annulment.
Note:  An opinion is required from Regional Counsel because questions as to whether or not the decree was obtained through fraud are mixed questions of fact and law.
5
Did Regional Counsel determine the annulment was fraudulently obtained?
Note:  Veterans Service Center Managers and Pension Management Center Managers may delegate authority to approve the administrative decision to a supervisor not lower than a coach.

III.iii.5.H.2.e.  Determining the Effective Date of an Award Based on a Void or Annulled Marriage

Use the table below to determine the proper effective date of an award or increased award of benefits that is based on a claim that a child’s marriage is void or was annulled.
If …
Then the proper effective date is …
Regional Counsel determined the marriage is void
the later of the following dates:
  • the date cohabitation ended, or
  • the date VA received the claim.
a judicial decree of annulment was accepted as proof of termination of the child’s marriage
  • the date the decree became final (if VA received the claim within one year of that date), or
  • the date VA received the claim.
Reference:  For more information regarding the effective date of an award or increased award of benefits based on
7-10-18_Key-Changes_M21-1III_iii_5_SecH.docx May 12, 2019 49 KB
Historical_M21-1III_iii_5_SecH_5-1-15.docx May 12, 2019 48 KB
Change-May-1-2015-Transmittal-Sheet-M21-1III_iii_5_secH_TS.docx May 12, 2019 42 KB
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