Iowa still recognizes common law marriage, unlike most other US states. Despite its legality, however, Iowa courts treat claims of common law marriage with skepticism. If you seek to prove the existence of such an arrangement, you may well face an uphill battle.
US law considers marriage to be a governmental recognition of an already-existing arrangement. In other words, private citizens create a marriage while the government merely acknowledges the arrangement. Iowa courts acknowledge common law marriages when they believe that a marriage between the parties existed despite the lack of formalities.
Popular Misconceptions About Common Law Marriage
Few areas of law trigger as many public misconceptions as common law marriage does, in Iowa as well as elsewhere. Some of the most common misconceptions include the following.
“If we live together for seven years, we automatically create a common law marriage.”
This is not true. The duration that the couple has lived together is only one of the factors, but there is no set amount of time that qualifies as common law marriage. A couple who has lived together for seven years might qualify, but not based simply on the length of their cohabitation.
“My spouse and I are in a common law marriage as long as we both consider ourselves to be married.”
Although Iowa law requires a mutual intent to be married, this intent is not enough by itself. Additionally, courts will require evidence of your intent before they will recognize your marriage.
“A common law marriage is just as good as an ordinary marriage.”
Yes, common law marriage grants spouses all the traditional marriage rights. The problem is that if you don’t have a marriage certificate, you don’t know whether you are married or not until you take the issue to court and the judge decides whether there was a marriage or not.
“If we have a common law marriage, we can get a common law divorce.”
Iowa does not grant “common law divorce.” If a court recognizes your common law marriage, you will need an ordinary divorce to dissolve the marriage.
An experienced Iowa family attorney can help you correct any misconceptions you might have about Iowa common law marriages.
Why You Might Need to Establish a Common Law Marriage
You will need a court declaration of common law marriage to exercise many of the rights associated with marriage. The following circumstances commonly compel people to seek common law recognition of their marriages.
If you intend to leave your spouse, establishing a common law marriage can help ensure an equitable division of your property. Without a declaration of common law marriage, you might be deprived of any property held in your common-law-spouse’s name.
If you seek a divorce, it’s important to establish a common law marriage before divorce proceedings begin. Neglecting to secure a divorce decree after you separate could lead to unacceptable uncertainty for both partners.
You may also need to seek a declaration of common law marriage if one spouse develops a serious illness and cannot form or communicate their intentions regarding medical treatment. Without a declaration of common law marriage, you could be cut out of the decision-making process.
A spouse has many rights upon their partner’s death that a non-spouse may not have.
For example, establishing a common law marriage may be necessary if your spouse dies without a will and their family seeks all their property. Additionally, it may be necessary before you can seek survivor’s benefits from your spouse’s pension or from some other program that requires you to be a spouse before you can collect benefits.
Your marital status may also be important if your spouse dies due to the negligence of a third party and you wish to file a wrongful death lawsuit. You will need to establish that you are a spouse to seek damages you have suffered as a result of the loss.
Once a court declares a common law marriage, the declaration is typically retroactive. In other words, a declaration of common law marriage bestows rights that go back to the date that the court declared the common law marriage to have begun.
What You Must Prove to Establish a Common Law Marriage
To establish a common law marriage, you must prove the three traditional elements of a common law marriage, as described below. The standard of proof is “clear, consistent and convincing evidence.” This standard is tougher to meet than the “preponderance of evidence” standard that normally applies to civil actions. It is a lower standard, however, than the “beyond a reasonable doubt” standard that applies in criminal prosecutions.
Present Intent to Be Married
Both spouses must consider themselves married right now, unless one spouse is already dead. Evidence that you entered into an engagement with your partner could defeat your claim of common law marriage, since your intention to marry in the future indicates that you do not consider yourselves married yet.
Although there is no formal minimum length of time that you must live together to establish a common law marriage, an extremely short period, such as a week, would probably be insufficient.
Public Identification as a Married Couple
You can publicly identify as a married couple by, for example, referring to each other as husband and wife, filing joint tax returns, having joint bank accounts, or using the same last name. Other ways to identify yourself as a married couple are possible as well.
Do Iowa Courts Recognize Gay Common Law Marriage?
Iowa legalized same-sex marriage in 2009, years before the US Supreme Court did. Iowa jurists, however, still disagree about whether gay common law marriage is legal in Iowa. Iowa’s use of the term “husband and wife” suggests, however, that gay common law marriage will not be recognized. Nevertheless, the same constitutional principles that apply to gay marriage appear to apply to gay common law marriage.
Even if the courts or the legislature formally recognize gay common law marriage, however, Iowa courts might still refuse to recognize gay common law marriages that purported to begin prior to 2009, the year that Iowa legalized same-sex marriage.
Contact Us Immediately
The seasoned family lawyers at 303 Legal, P.C., understand the nuances of Iowa family law through a multitude of successful representations. Our extensive experience has taught us where to draw the balance between cooperation and conflict based on rapidly developing circumstances. Reach out to 303 Legal, P.C., by contacting us online, calling our office at 319-423-3031, or visiting our office in Cedar Rapids, IA. Remember—you pay us only if you win.