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hlth insrnc cvrg for common law spouse when moving state to state

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mr french

Junior Member
What is the name of your state?What is the name of your state? I currently live in Georgia.

I had an established common law marriage meeting the legal requirements in the state of South Carolina at the time of joining a new company. The health plan documentation given to me at the time of employment said simply that a spouse is covered, without a legal definition of spouse. To me, she was my spouse in the state where I lived, but the company where I accepted the job was in Georgia. The company has demanded that I reimburse them for insurance claims, claiming that a legal disclaimer in some master insurance document kept in a cave and not generally available to employees, says that the legal definition of a spouse is one with legal documentation. Added twist to this is that after 6 months of living in SC and working in GA, my family and I moved to GA. My understanding is that accepted legal practice has been that common law marriage recognized in one state is recognized in the other states, even when said states do not GRANT common law marriages.

The company agrees that there was no attempt to defraud, but still wants me to reimburse them. The amount is over $11K.
 


I AM ALWAYS LIABLE

Senior Member
mr french said:
What is the name of your state?What is the name of your state? I currently live in Georgia.

I had an established common law marriage meeting the legal requirements in the state of South Carolina at the time of joining a new company. The health plan documentation given to me at the time of employment said simply that a spouse is covered, without a legal definition of spouse. To me, she was my spouse in the state where I lived, but the company where I accepted the job was in Georgia. The company has demanded that I reimburse them for insurance claims, claiming that a legal disclaimer in some master insurance document kept in a cave and not generally available to employees, says that the legal definition of a spouse is one with legal documentation. Added twist to this is that after 6 months of living in SC and working in GA, my family and I moved to GA. My understanding is that accepted legal practice has been that common law marriage recognized in one state is recognized in the other states, even when said states do not GRANT common law marriages.

The company agrees that there was no attempt to defraud, but still wants me to reimburse them. The amount is over $11K.

My response:

Whomever is telling you this is obviously not an attorney. Tell this person or persons to look up the word "Comity" - which is the recognition of one State's laws in another State; e.g., all because you received a driver's license in Florida, doesn't mean you can't drive in California. Same thing holds true with marital laws; that is, if you were married under the recognized and accepted laws and principles in one State, then you're married everywhere you go. As a further example of "comity," a "common law marriage" (marriage predicated solely on consent and cohabitation without license and solemnization) entered into in a jurisdiction that validates the same will be recognized for all purposes in California. This is the law in all States because the United States Constitution requires every state to accord "Full Faith and Credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.

IAAL
 
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mr french

Junior Member
company position

My state is Ga.

I mentioned the Comity point to the company, and after debating that, their point of emphasis is now that legal or not, the clause in the master insurance plan states that the marriage must be legally documented, ie marriage license. The company insurance handbook has a statement that any point of legal contention, the master plan will rule. The handbook they give every employee is extensive, but simply states that a "spouse" is covered, and my point is simply that I did not get a copy of the master plan, and the handbook makes no mention on qualifying a spouse in any manner. Had I known of this point, I would have gone and got a "documented" marriage.

Additionally, I have the concern that if I fight this, they will change their position on "no attempt to defraud" and fire me. They have been known to do that kind of thing, knowing they would probably lose in arbitration, but make the employee suffer financially anyway. They have EXTREMELY deep pockets. Now they are pushing me for my answer and I am unsure which way to go. I do firmly believe I am correct, but cannot afford to take a chance on losing my job and hoping that some arbitrator or judge agrees.
 

rmet4nzkx

Senior Member
Did you file your income tax joint/married or any other documentation showing married status, such as joint bills or accocunts using a married name?
How long have you been together? Georgia recognized common law marriages entered into prior to as of January 1, 1997 are valid, so it has not been so long that GA has not recognized common law marriages.
 

I AM ALWAYS LIABLE

Senior Member
mr french said:
My state is Ga.

I mentioned the Comity point to the company, and after debating that, their point of emphasis is now that legal or not, the clause in the master insurance plan states that the marriage must be legally documented, ie marriage license. The company insurance handbook has a statement that any point of legal contention, the master plan will rule. The handbook they give every employee is extensive, but simply states that a "spouse" is covered, and my point is simply that I did not get a copy of the master plan, and the handbook makes no mention on qualifying a spouse in any manner. Had I known of this point, I would have gone and got a "documented" marriage.

Additionally, I have the concern that if I fight this, they will change their position on "no attempt to defraud" and fire me. They have been known to do that kind of thing, knowing they would probably lose in arbitration, but make the employee suffer financially anyway. They have EXTREMELY deep pockets. Now they are pushing me for my answer and I am unsure which way to go. I do firmly believe I am correct, but cannot afford to take a chance on losing my job and hoping that some arbitrator or judge agrees.

My response:

This is a perfect example of how stupid people are in Georgia, and some of the other Hillbilly States. You can't reason with stupidity. "Uh, duh, I don't care what the law of Comity is, or what the gall durn Constitution says. I say my company handbook is better than the law, and whatever my handbook says, that's the law, duh yup!"

I can't deal with idiots, and you're on your own with those idiots in your company, pal.

IAAL
 

mr french

Junior Member
Georgia

First, we did have a joint bank account with both of our names and the same last name. She did not work, and was claimed as a dependent on my income tax returns. We moved to SC from Oregon in '96, and to Georgia in '97. I have been working for this company since '97.

Second, I think it a mistake to assume that this company is just a bunch of hillbillies from Georgia. The company I work for is in the top 3 tobacco companies in the world. However, I do think it safe to assume that they do have a bunch of highly intelligent and talented lawyers on their staff, but I doubt that this has gone that far yet. My feeling is this is still in the HR department because this company self insures, and just pays another company to administer the plan. It may actually be the plan administrator who is taking this position, hoping I will simply buckle.

The HR manager that I am dealing with sees my point, but it is not his decision to make. He has asked that I put together a package of information, some of which I have already given to him, so that he can send it to some type of "review board". My purpose for posting here is to seek experienced and knowledge input so that I can decide if my case is on solid legal ground, and whether it merrits seeking counsel, should it get to that point. To me it all boils down to the questions of whether the company can legally exclude my spouse, and is it reasonable to expect me to know about a clause in a document not generally available to me? Also, I was actually hoping to get a response that I could print out that would list legal facts that support my position. The point of "Comity" being an example of one that actually hit the mark.

Thank you for your time and input. I do appreciate it all!
 

I AM ALWAYS LIABLE

Senior Member
mr french said:
Georgia

First, we did have a joint bank account with both of our names and the same last name. She did not work, and was claimed as a dependent on my income tax returns. We moved to SC from Oregon in '96, and to Georgia in '97. I have been working for this company since '97.

Second, I think it a mistake to assume that this company is just a bunch of hillbillies from Georgia. The company I work for is in the top 3 tobacco companies in the world. However, I do think it safe to assume that they do have a bunch of highly intelligent and talented lawyers on their staff, but I doubt that this has gone that far yet. My feeling is this is still in the HR department because this company self insures, and just pays another company to administer the plan. It may actually be the plan administrator who is taking this position, hoping I will simply buckle.

The HR manager that I am dealing with sees my point, but it is not his decision to make. He has asked that I put together a package of information, some of which I have already given to him, so that he can send it to some type of "review board". My purpose for posting here is to seek experienced and knowledge input so that I can decide if my case is on solid legal ground, and whether it merrits seeking counsel, should it get to that point. To me it all boils down to the questions of whether the company can legally exclude my spouse, and is it reasonable to expect me to know about a clause in a document not generally available to me? Also, I was actually hoping to get a response that I could print out that would list legal facts that support my position. The point of "Comity" being an example of one that actually hit the mark.

Thank you for your time and input. I do appreciate it all!

My response:

You see, that's the problem. You're being required to act as your own attorney, and do research of the law, when I've cited you the appropriate and controlling law. But, you're dealing with a bunch of knucklehead Hillbillies in HR who don't have the proper breeding to say, "You know what, I'll get an opinion from our company attorney, and get back to you on that point." The idiots you're dealing with are ignorant, and don't care about the law. They either refuse to understand, can't understand, or don't care. All they know is what the handbook says, or what the insurance policy says. Well, it's not what the handbook or what the policy says that counts. It's what the law says, and the law says that Comity between sister States shall recognize the laws of its Sister State.

The problem is that you're dealing with a bunch of Georgia Dufuses, who don't have the brainpower to think, or to obtain an opinion on this subject from the company attorney.

You're not an attorney, and shouldn't have to compile a "treatise" on this issue. That's not your job.

I'll tell you what - - tell HR that you'll have your attorney contact their attorney, and make sure to get a name, address and telephone number for your attorney.

IAAL
 

rmet4nzkx

Senior Member
You satisfy all the elements for a common law marriage in both SC and GA

http://www.scstatehouse.net/code/t20c001.htm
SECTION 20-1-360. Effect of article on marriage without license.
Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.

# South Carolina: A common-law marriage is established if a man and woman intend for others to believe they are married (a license is not required).
Georgia (if the elements were satisfied before January 1, 1997)
(This includes common law marriages contracted in other states)
In general the requirements for a common law marriage are as follows:
* The couple must live together for a significant amount of time. The word significant is not defined in any state, but is generally interpreted as sufficient time to reasonably establish the intent of the couple to be married.
* The couple must hold themselves out as married. This can include use of the same last name, referring to each other as husband and wife, maintaining a joint checking account, signing the lease as "Mr. and Mrs.", and filing a joint income tax return.
* The couple must have the capacity to be married. This means they must have the legal and mental capacity to be married and not be already married to someone else.
* The couple must intend (consent) to be married. Intent is usually judged by the couple's conduct.
* The couple must have a reputation in the community as being married.

The key requirement is cohabitation while holding themselves out as being married. Mere cohabitation without holding themselves out as a married couple does not constitute marriage. On the other hand traveling to a common law state even for a vacation could establish a common law marriage, but you more than met this.

Note that if a couple were living together in a common law marriage, and then moved to a state that doesn't recognize common law marriages, they are still considered married. This is because of the "Full Faith and Credit" clause of the US Constitution (Section 1 of Article IV).

Common Law Marriage Requirements
South Carolina couple intends for others to believe the couple is married

Here is a link to an article with some citations involving SC common law marriage recognized in other states, in these cases there were fewer elements met. http://www.brandeslaw.com/common_law_marriage/clmart.htm

I hope this helps
(Tell them to stick it in their pipes and smoke it) :D
 

somarco

Member
I didn't have time to address this earlier, so coming back to add to the thread.

The carrier or plan sponsor has a right to define dependents in any manner they choose, as long as it does not violate laws governing insurance contracts. Now that I know this is with a tobacco company, my guess would be this is a self funded plan and the employer has the right to do just about anything they want with regard to benefits, definitions of eligibility and so forth. State laws are out the window and most of what they have to comply with is ERISA and subsequent laws specifically designed with insurance in mind.

If the employer, more specifically the plan, choose to define a husband & wife as one who has had a civil ceremony that is their preroggative.

French can fight this if they like but don't expect the company to change their plan just to accomodate you (and a few others).

Those who have offered their opinion so far are free to belittle segments of the country all they want but that does not change the elements of the plan doc governing this plan. Reading this thread, and a few others, it is obvious why so many carriers refuse to offer health insurance to attorneys.
 

rmet4nzkx

Senior Member
somarco said:
The carrier or plan sponsor has a right to define dependents in any manner they choose, as long as it does not violate laws governing insurance contracts. Now that I know this is with a tobacco company, my guess would be this is a self funded plan and the employer has the right to do just about anything they want with regard to benefits, definitions of eligibility and so forth. State laws are out the window and most of what they have to comply with is ERISA and subsequent laws specifically designed with insurance in mind.

If the employer, more specifically the plan, choose to define a husband & wife as one who has had a civil ceremony that is their preroggative.
ERISA, Federal law, not state law, which brings us back to the "Full Faith and Credit" clause of the US Constitution (Section 1 of Article IV). It will also bring into play The Defense of Marriage Act which defines spouse under ERISA and Federal law.

Therefore the plan doesn't define a civil marriage under ERISA it is based on DOMA and State law. The word used was "spouse". SC where the couple was married, does not require a marriage license, they have been married for more than 10 years, have been filing the federal income tax joint, she has been using his name. They qualified under GA law as well. If they were a same sex couple, then the definition of spouse under ERISA would be subject to state law, DOMA and the limitations or allowances of the plan.

Information on DOMA: http://www.bannerofliberty.com/OS-1996MQC/7-7-1996.2.html
The Defense of Marriage Act (DOMA) is short, and it does just two things:

It provides that no State shall be required to give effect to a law of any other State with respect to a same-sex `marriage'.

It defines the words `marriage' and `spouse' for purposes of Federal law.

This section of the bill is an exercise of Congress' powers under the `Effect' clause of Article IV, section 1 of the Constitution, which reads, `Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' [Emphasis added.]

Precedents. Congress has legislated before with respect to full faith and credit. The general provisions, 28 U.S.C. 1738 & 1739, go back to the earliest days of the Republic. Act of May 26, 1790, 1 Statutes at Large, chap. XI. More recently, Congress has reinvigorated its powers under Article IV of the Constitution by enacting--

Section 3 contains definitions. It will amend Chapter 1 of Title 1 of the United States Code by adding the following new section:

`7. Definition of `marriage' and `spouse'

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'

Section 3 merely restates the current understanding. The text reaffirms what Congress and the executive agencies have meant for 200 years when using the words `marriage' and `spouse'--a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.

Most of section 3 borrows directly from the current United States Code. The introductory phrases are taken from sections 1 and 6 of Title 1, and the definition of spouse is taken from paragraph 31 of section 101, Title 31. The current Code does not contain a definition of marriage, presumably because Americans have known what it means. Therefore, the definition of marriage in DOMA is derived most immediately from a Washington State case, Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974), and this definition has now found its way into Black's Law Dictionary (6th ed. 1990). There are many similar definitions, both in the dictionaries and in the cases. For example, more than a century ago the U.S. Supreme Court spoke of the `union for life of one man and one woman in the holy estate of matrimony.' Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

Note that `marriage' is defined, but the word `spouse' is not defined but refers to. This distinction is used because the word `spouse' is defined at several places in the Code to include substantive meaning (e.g., Title II of the Social Security Act, 42 U.S.C. 416 (a), (b), & (f), contains a definition of `spouse' that runs to dozens of lines), and DOMA is not meant to affect such substantive definitions. DOMA is meant to ensure that whatever substantive definition of `spouse' may be used in Federal law, the word refers only to a person of the opposite sex.

==
Here is a link discussing ERISA, DOMA, common law marriages are mentioned although not the focus of the article because they are considered spouses if recognized by the state in which the marriage took place and subsequent states of residence.
http://www.benefitscounsel.com/archives/001156.html
8-1-2004
The interplay of DOMA, ERISA, and other federal laws

Recent events in Massachusetts regarding marriage have spawned a plethora of law firm publications on the implications of same-gender marriage as it relates to benefit plans. You can access three of such publications here (Jackson Lewis), here (Ropes & Gray) and here (Goodwin Procter). However, this recent article published by the Congressional Research Service ("CRS") of the U.S. Library of Congress (via Benefitslink.com)--"The Effect of State-Legalized Same-[Gender] Marriage on Social Security Benefits and Pension"-- makes an interesting point regarding the interplay between ERISA and the Defense of Marriage Act ("DOMA"):

DOMA provides that, in interpreting any federal statute, ruling, or regulation —including, for example, ERISA and the Internal Revenue Code — a spouse can only be a person of the opposite [gender] who is a husband or wife. Consequently, a pension plan cannot be required to recognize a same-[gender] spouse even if same-[gender] marriages are permitted under state law. Some benefits specialists have suggested that because Section 514(a) of ERISA preempts state laws that relate to employee benefits covered by ERISA, ERISA would therefore preempt any state law requiring the plan to recognize same-[gender] marriage for purposes of administering pension benefits. However, whether ERISA alone would preempt state laws recognizing same-[gender] marriage is irrelevant because DOMA prohibits recognition of same-[gender] spouses in the interpretation and application of federal law.

While the technical points of whether DOMA prevails or ERISA preempts provide for interesting thought and discussion, one of the main concerns that the marriage issue raises with respect to benefit plans has to do with the fact that, for income tax purposes, the IRS has historically maintained that an individual is considered to be a “spouse” if the applicable state law recognizes the relationship as a marriage. If, for example, state law recognizes common-law marriages as legal, an employer in that state would be required to recognize an employee’s common-law spouse as his or her legal spouse and IRS would recognize the marriage as valid.

Similarly, many plan documents have defined the term "spouse" as looking to state law as well. This is important for qualified plans as it impacts such matters as pre-retirement survivor annuity and joint and survivor annuity requirements as well as requirements pertaining to spousal consent and qualified domestic relation orders. Now, after recent events regarding marriage, plans which still contain this language of defining the term "spouse" as looking to state law or plans which do not define "spouse" at all, are problematic in affected states since the language, if left unchanged, is confusing, implying that same-gender marriages might be recognized under the plan document when, in fact, DOMA would dictate otherwise. This is why it is important to amend plan documents and revise Summary Plan Descriptions to clarify the issue, particularly for companies with employees in affected states.

The CRS article goes on to discuss how Social Security, the Federal Employees Retirement System, and the Civil Service Retirement Systems are also governed by DOMA and, therefore, would not be affected by state law changes pertaining to the definition of marriage.

Additional note: The Ropes & Gray article also has this interesting discussion regarding the interplay of DOMA and the Family Medical Leave Act ("FMLA"):

The FMLA defines “spouse” as “a husband or wife, as the case may be.” The U.S.Department of Labor’s regulations implementing the FMLA add the following unusual gloss to that statutory definition: “’Spouse’ means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.” The FMLA regulations (unlike the statute on which they are based) thus command employers to look to state law to determine the meaning of “spouse” for purposes of applying the FMLA.
 

rmet4nzkx

Senior Member
somarco said:
Got an itch for some pro bono work, met? Sounds like you are just itching to take on big tobacco for free.
Nope, it's just that you are not providing correct advice and others have to correct you. :rolleyes:
 

rmet4nzkx

Senior Member
somarco said:
Thanks for reminding me why I am so glad I no longer handle the TN & NC bar association health plans.
And what relevance is that to the issue of a common law marriage in SC, recognized in GA?
 

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