Common Law Marriage: What is it?
Common law marriage occurs when two people live together and present themselves as a married couple but do not have a marriage certificate. For many, common law marriage holds the same status as a traditional, legal marriage. However, common law marriage does not exist in every state . In fact, it is only recognized in a handful of states, including Iowa, Colorado, Alabama, Kansas, New Hampshire, Montana, Rhode Island, and Texas (as well as the District of Columbia).
Because this practice varies widely, it is prudent to understand where your state of residency stands on the issue. Same-sex marriage is treated similarly: while it is recognized in the majority of states, it has yet to be fully recognized federally.
Common Law Marriage Requirements in Iowa
For individuals seeking to establish a common law marriage in Iowa, several criteria must be met. First, there must be mutual consent of the parties demonstrating an intent to be married. This meeting of the minds must result in at least one party holding the other out to be a spouse. The second requirement is that the parties must reside together as a married couple. While the length of cohabitation is not a barrier, the parties must share a residence. For this reason, it is not possible for individuals to establish a common law marriage if they merely move into a residence together to fulfill a residency requirement. A third criterion for establishing a common law marriage in Iowa is public representation as a married couple. This can be evidenced through the use of the same surname, filing joint tax returns and holding joint accounts.
Common Law Marriage: Its Legal Consequences in Iowa
Although common law marriage is no longer created in Iowa, the impact of a common law marriage entered into prior to 1986 can be profound In Iowa, the rights and obligations that flow from a common law marriage upon separation are akin to those of a traditional marriage. In Iowa, as in most states, courts may divide property equitably at the time of divorce or dissolution of a marriage. In the event of separation between parties to a valid common law marriage, Iowa courts maintain this same authority. Thus, property that was once jointly or individually owned by parties to a common law marriage can be divided by extension of the same rules that would apply to parties to a traditional marriage. This means that all property is subject to distribution, regardless of how property was titled when a couple entered into the common law marriage. This applied to property acquired during the course of the marriage as well as to distributions that may enter at some other point in time and excludes only property received as a gift or by inheritance. Further, the equal contribution of both parties to the accumulation of assets applies equally to both common law and traditional marriages. Similar to the issue of property division, a court in Iowa may also determine that possessory rights to children resulting from a common law marriage are subject to its discretion. This means that a judge can award custody as he or she sees fit, granting sole physical care, joint physical care, or joint legal care to the parties. Further, child support is based upon the same child support guidelines that apply to traditional marriages, regardless of whether the parents were actually married. As with a traditional marriage, the marital estate is divided equitably, and spousal support is available within the same parameters as that of an actual marriage. The only necessary factor for a court to consider in deciding a spousal support award is whether an award is needed, and if so, how much.
Proving and Validating a Common Law Marriage
The proof and recognition of a common law marriage will be very fact specific. Iowa recognizes the same standards of proof that apply in traditional marriages. A person must establish by ‘clear and convincing’ evidence the existence of a common law marriage.
While a marriage certificate provides clear evidence of a marriage, a nontraditional relationship may lack this type of documentation. The focus there is on the intent of the parties and their conduct. Such evidence can include financial affidavits , communication records, testimony of family and friends, deeds and property holdings, tax returns and more.
The court will consider evidence from the entirety of the relationship, as presentative of the relationship as a whole, such as:
In short, evidence will be based on the facts and circumstances of the case. Here is a brief overview of some of the evidence that has been considered by the courts in common law marriage matters.
Common Law Marriage: Controversies and Challenges
The discussion of common law marriage is often fraught with challenges and debates. Few issues in law raise more controversy and confusion than common law marriage. There are many potential battles ahead when dealing with a common law marriage, particularly as it relates to the issues of divorce, marital property and distribution, and death or incapacity.
Common law marriages can be very contentious and debated. These questions could include: (1) the existence of a common law marriage; (2) the date of the marriage; (3) the validity of the marriage if entered into in the wrong state; (4) intervention of the state attempting to eliminate its existence; (5) federal benefits and recognition; (6) inheritance; (7) liability for debts of the other spouse; (8) whether the existence of a common law marriage can be disputed by an intervening third party such as an insurance company that has a valued policy of the deceased against theft of property or unexplained disappearance; (9) disclosure of marital status; (10) dissolution of common law marriages and the laws of separate property concerning creditors, tort litigation, and creating or sustaining a business; and (11) whether an imputed income can be obtained.
In Iowa, any number of courts might be involved with these issues. District Courts will be dealing with divorces, estate issues, and property concerns. The Business Specialty Court, which generally handles business litigation, might be involved. In addition, the Court of Appeals and perhaps the Iowa Supreme Court will be involved in significant prior and future cases. This area of law has been and will continue to be alive in the future.
Ending a Common Law Marriage in Iowa
Dissolution of a common law marriage in Iowa is similar to the dissolution process of a registered marriage in the state. Iowa recognizes two ways in which to end a common law marriage in the state – wherein a marriage can end by operation of law or pursuant to a marriage dissolution.
A divorce proceeding may occur in court or outside of court when a party desires to end the common law marriage. The best, most tax and financially efficient way to end a common law marriage may be pursuant to a divorce in which a decision regarding asset division, alimony and debts is made via a court order or agreement in writing. Separation or dissolution of a marriage by dissolution of the marriage in a court may occur by finding that the marriage is irretrievably broken. A court may consider any number of factors when deciding whether to grant a request to terminate an Iowa common law marriage. A court will then have discretion to make an award for property distribution , spousal support or alimony and debts.
When a common law marriage is terminated, a person may apply for benefits based on the marriage under federal and state laws. Domestic relations law does not provide a specific waiting period once a divorce is finalized before remarriage can occur. State law also does not impose residency requirements upon the parties to a divorce for purposes of filing for a divorce in Iowa.
A common law marriage will be in existence until it is terminated. There is a rebuttable presumption that a marriage exists up to a date of separation if a marriage existed prior to separation and a dissolution of that marriage has not occurred.
The most significant issue with an Iowa common law divorce proceeding is in having a determination by a court to a dissolution of the common law marriage. When a common law relationship ends, the parties should be sure to have all relevant issues resolved pursuant to an agreement or court order. Failure to do so may have a serious and adverse impact upon the parties in the future.