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Iowa Common Law Marriage

What Is Common-Law Marriage?

Common-law marriage (also known as informal or de facto marriage) occurs when two persons agree to be married to each other and hold themselves out to everyone as husband and wife without going through the formal marriage proceedings in the state. Common-law marriages are permitted in Iowa. Other states that permit common-law marriages include Colorado, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Rhode Island. Each state has its criteria for recognizing common-law marriages. Common-law marriage is a popular choice for people who want to avoid the cost and formalities of a traditional wedding. When a common-law marriage is permitted or recognized by a state, the couple is entitled to the same rights and benefits as individuals who are married in a formal marriage. They include:

  • The right to share jointly owned property
  • Health insurance coverage on the partner’s policy
  • In the absence of a valid Health Care Directive, the right to make health care decisions on behalf of the partner
  • Child custody rights
  • Jail visitation rights
  • Joint filing of tax returns
  • Rehabilitative alimony
  • Inheritance rights upon the death of a partner.

However, there are some drawbacks to common-law marriages, including:

  • Couples in common-law marriages may find it difficult to prove the marriage exists, especially if one of the spouses is deceased and there is no legal document to prove the marriage exists
  • When a divorce petition is filed, the party alleging the existence of the marriage must prove
  • It may result in the loss of the right to survivorship

To enter into a common-law marriage in a state where it is legal, the couple must meet the requirements of the state. Typically, they must be of legal age and have lived together for a particular time.

Marriage in Iowa

In 2018, Iowa’s marriage rate was at 5.7 marriages per 1,000 residents. The state’s divorce rate was recorded in 2019 at 2.3 per 1,000 married couples. Over 49% of Iowa’s population is married. A survey of the population aged 15 and older revealed that 52% of the females were married vs. 54% of men in Iowa. 13% of the female demographic were either separated or divorced, compared to 11% for men.

Does Iowa Recognize Common-Law Marriage?

Iowa permits the contraction of common-law marriages within the state. According to Iowa Code §252A.3(8), a person who was or is held out as another person’s spouse by a person by virtue of a common-law marriage is deemed the legitimate spouse of that person. In addition, under the Full Faith and Credit Clause of the Constitution, Iowa recognizes common-law marriages validly created in states that recognize common-law marriages. Hence, where a couple is legally married in a state that recognizes common-law marriages will also be considered legally married in Iowa.

Apart from common-law marriages, Iowa also permits other non-marital relationships, like domestic partnerships and cohabitation agreements.

What is a Domestic Partnership in Iowa?

A domestic partnership is an interpersonal relationship formed by two people who reside together and share a common domestic life but are not married. Employees in Iowa have the option of enrolling their same-sex or opposite-sex domestic partner in their state employee health and dental insurance. Their children can also be covered under the state’s health and dental plans. To enjoy this benefit, they must meet the state’s definition of an eligible dependent child. If certain conditions are met, a domestic partner who is enrolled in health and dental coverage may qualify as a “tax dependent” according to the Internal Revenue Service.

To establish a domestic partnership, the couple must fill out the Declaration of Domestic Partnership and declare the following:

  • They are each other’s sole domestic partner, intend to remain that way indefinitely, and be responsible for their common welfare
  • They maintain a common residence and intend to cohabitate in it continually
  • They financially support each other by being jointly responsible for each other’s necessities
  • They are not legally married to, separated from, or in a domestic relationship with another person
  • They are at least 18 years old and mentally competent to consent
  • They are not related by blood closer than would prevent the marriage in Iowa

It should be submitted to:

Iowa Department of Administrative Services - Human Resources
1305 East Walnut Street
3rd Floor
Des Moines, IA 50319
(515) 281-5889

To enroll a domestic partner and children, the employee must enroll the domestic partner and children in health and dental coverage after completing the Declaration of Domestic Partnership. Both the affidavit and enrollment must be completed within 30 days of one another.

If the domestic partnership comes to an end, the domestic partners must complete and submit the Affidavit of Termination of Domestic Partnership.

What is a Cohabitation Agreement in Iowa?

A cohabitation agreement is an agreement between two persons in a relationship that live together. It specifies how assets, debts, and other relevant items will be divided in the event of cohabitation termination. Cohabitation agreements are made to protect the couple’s jointly owned assets while cohabiting and to avoid lengthy litigation when the relationship ends. Because oral agreements are difficult to prove, it is preferable to have the agreement in writing.

Because a cohabitation agreement is no more than a contract between two adults, it is enforceable in court. It prescribes the rights and obligations of both parties in the agreement. This includes separate and joint expenses, identification of separate and joint property, custody and visitation rights, etc.

What are the Requirements for a Common-Law Marriage in Iowa?

According to the court in the re Estate of Fisher case, three elements must exist to contract a common-law marriage in Iowa. They are:

  • Both parties’ intent and agreement in praesenti to marry
  • Continuous cohabitation
  • Making a public declaration or representing to the public that the parties are husband and wife

How many years do you have to Live Together for Common-Law Marriage in Iowa?

There is no defined time during which the couple must live together to meet the requirement of continuous cohabitation. However, the couple must live together continuously, not just occasionally or on weekends. They must also live together as a couple, which usually entails having a sexual relationship. It is also critical that cohabitation be connected with the intent and agreement to marry.

What Does it Mean to be Legally Free to Marry in Iowa?

According to Iowa Code §595.1A, marriage is a civil contract that requires the consent of persons capable of entering into other contracts. Hence, to be legally free to marry in Iowa, a person must be mentally capable of entering into a valid contract in Iowa. Both partners must be at least 18 years old. If any of them is between 16 and 17 years, they must obtain parental consent and permission from a court judge. Also, neither party should be legally married to, separated from, or in a domestic relationship with another person. They must not be related by blood closer than what will bar the marriage ceremony from being performed. To get married in Iowa, the couple does not need to be residents of the state.

What is Intent to Marry in Iowa?

Intent to marry in Iowa is declared by obtaining a marriage license. In Iowa, marriage licenses are granted at the county level by the county’s recorder. The couple intending to marry can approach any Iowa County Recorder to apply for a marriage license. They must apply in person or complete the form provided and notarize it. They must both present a means of identification and pay an application fee of $35. The license is valid after three days of approval granted by the recorder. This is unless a judge grants a waiver. A license is valid for six months.

What is an Informal Marriage in Iowa?

In Texas, common-law marriages are called informal marriages. Informal marriages and common-law marriages are essentially the same but with different names based on the location. Since common-law marriages are permitted in Iowa, informal marriages are also permitted. This means that a couple that is informally married in Texas will be considered to have contracted a common-law marriage in Iowa.

How Do You Prove Common-Law Marriage in Iowa?

Proving the existence of a common-law marriage may sometimes be difficult. In Iowa, the person asserting that a common-law marriage was contracted has to show the following:

  • There was intent and agreement from both parties to be married
  • Continuous cohabitation
  • That both parties held themselves out as married.

The best way to prove that a common-law marriage exists is where there is a written agreement signed by both parties that shows their desire to form the union. If there is no written agreement, supporting documents and testimonies of witnesses can be used.

In the absence of a written agreement, testimonies and other supporting documents can be relied on to prove the existence of the marriage. Examples of supporting documents that can be used include:

  • Joint utility accounts or joint filing of tax returns
  • Insurance policies or retirement plans that have the other partner as a beneficiary
  • Shared utility account bills including gas, phone, and electricity
  • Birth certificates of their children that state both spouses as parents
  • Important documents showing that one partner adopted the surname of the other
  • Driver’s licenses and identification documents that show that the spouses share the same address
  • Documents that show that the couple’s joint financial obligations, such as loan documents, mortgages, and promissory notes
  • Mail sent as a couple to both spouses
  • Rental contracts or joint leases
  • Title deeds to residential property demonstrating joint or shared ownership
  • When the common-law partner is listed as an immediate family member on the other spouse’s employment records.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

  • The full name of both spouses ((include first, middle, and last names)
  • The date the marriage occurred (month, date and year)
  • The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in Iowa After Death?

The death of a partner will require the widowed spouse to prove the existence of a common-law marriage to exercise certain rights. The common-law marriage can be proved with an agreement or supporting documents. Statements or testimonies of relatives or close friends confirming the existence of the marriage can also be presented.

Do Common-Law Marriages Require a Divorce?

To terminate a common-law marriage in Iowa, a divorce is required. This is because a common-law marriage is essentially seen as the formation of a union that grants the couple the same rights of persons in formal marriages.

According to Iowa Code §598.5, to end a marriage in Iowa, a person must file a petition at a district court stating that the marriage relationship has broken down to the point where the legitimate objects of marriage have been destroyed and there is no reasonable chance that the marriage can be saved. This is known as “no-fault divorce.” It must also be stated that the person filing the petition has resided in Iowa for at least a year and must state the county and length of residence. The exception to this is where the respondent is a resident of Iowa and is personally served the divorce papers.

Once the petition is filed, if the other party requests conciliation, the court will give the parties 60 days to engage in conciliation. Before a dissolution decree can be issued, there is a waiting period of at least 90 days. A court may waive this in exceptional circumstances. To resolve disputed issues, the judge can order the parties to attend mediation sessions. If there are children, both spouses must complete the Children in the Middle program.

The judge can issue temporary orders while the dissolution is pending. The orders can include provisions for child support, custody, and attorney’s fees. The marriage is dissolved according to the final dissolution decree entered by the court. The decree also specifies child custody, child support, spousal support, and a property settlement. The former spouses forfeit all rights that are not specifically preserved in the decree. The parties are divorced and are free to remarry.

Does a Common-Law Wife Have Rights in Iowa?

In Iowa, couples in common-law marriages have the same rights as couples in formal marriages. This includes rights to the decedent’s estate and rights arising from divorces. Some of these rights include:

  • Emergency medical care and hospital visitation rights
  • Economic safeguards in the event of a spouse’s death, such as inheritance rights
  • Burial, autopsies, and disposition of remains rights
  • Rights to sue for wrongful death and other types of claims based on spousal status
  • Employees have the right to receive workers’ compensation benefits if their spouse dies on the job.
  • Spouses of public employees are entitled to health insurance and pension benefits.
  • Right to file joint state tax returns, claim spousal deductions on state income taxes, and benefit from tax breaks when transferring property interests.
  • Rights and judicial forums about the couple’s separation, divorce, and care for any children

Upon dissolution of the marriage, the court will divide up the assets and liabilities of the couple and decide on custody and visitation following relevant Iowa laws.

Can a Common-Law Wife Collect Social Security in Iowa?

A common-law wife can collect social security in Iowa. The requirement of validity must be met, and proof must be presented by submitting a Statement of Marital Relationship Form and an additional statement from a blood relationship. There must also be an acknowledgment of the marriage in the statement. The couple must provide the following information:

  • The year they began living together as a couple
  • The city/town and state where cohabitation began
  • The duration of cohabitation
  • The places where the couple has lived together Whether or not the couple has children
  • The couple’s previous names (if changed)

Are Common-Law Wives Entitled to Half in Iowa?

Common-law wives are not entitled to half of the marital property in Iowa. According to Iowa Code § 598.21, Iowa is an “equitable distribution” state. This means that marital property is not divided 50/50; rather, it is divided in a “fair and reasonable” manner. Except for gifts and inheritances received before or during the marriage, the court will divide all of the spouses’ property, whether acquired before or after the marriage. A part of the property may be reserved in a fund to support, maintain, and educate any minor children. Marital fault is not a factor. Any property division takes into account a number of factors, including, but not limited to:

  • The duration of the marriage
  • Each party’s property brought to the marriage
  • Each party’s contribution to the marriage, with appropriate economic value assigned to each party’s contribution in homemaking and child care services.
  • The parties’ ages, as well as their physical and emotional health
  • The contribution of one party to the other’s education, training, or increased earning power
  • Each party’s earning capacity, including academic background, training, employment skills, employment history, duration of absence from the job market, custodial obligations for children, and the time and expense required to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage
  • The desirability of awarding the family home or the right to live in the family home for a reasonable period of time to the party with custody of the children, or, if the parties share legal custody, to the party with physical care of the children
  • The amount and length of time of an order granting either party support payments under Iowa Code 598.21A, and whether the property division should be in lieu of such payments
  • Other economic circumstances of each party, including vested or unvested pension benefits. Future interests may be considered, while expectancies or interests emerging from inherited or gifted property created under a will or other instrument through which the trustee, trustor, trust protector, or owner has the power to dismiss the party in question as a beneficiary are not considered
  • The tax implications for each party
  • Any written agreement reached by the parties regarding property distribution
  • The terms of an antenuptial agreement
  • Other factors that the court may deem relevant in a particular case.

How Do You Get a Common-Law Marriage Affidavit in Iowa?

The marriage affidavit certifies that a common-law couple meets the requirements of a common-law marriage in Iowa. To determine if a common-law marriage exists in Iowa, the court will look to see if there was intent or agreement between the couple, if the couple was residing together continuously, and if the couple was holding themselves out as man and wife, among other factors. After any length of time, a common-law marriage can be recognized. A common-law marriage grants a couple the same rights as if they were married. It also gives a person the right to claim the property of their deceased “spouse”.

Once two people get married, irrespective of how their marriage is contracted, they are married and can only be divorced through the appropriate channels in the jurisdiction where the divorce is granted. That is by a court order.

What is Considered Common-Law Marriage in Iowa?

A common-law marriage in Iowa is basically an informal union between two persons who are capable of consenting to an agreement. They agree to marry and to that effect, they continuously cohabit and represent to the public that they are husband and wife. There is no specific time required for them to continuously cohabit for the marriage to take effect. This is why it is advised that once all these requirements are met, the couple should go to the court to give effect to the marriage.

Does the Federal Government Recognize Iowa Common-Law Marriages?

Where a common-law marriage is validly formed in any state that permits it, that marriage is recognized in the U.S. Apart from Iowa, there are currently eight other states and the District of Columbia that allow the formation of common-law marriages. They include Colorado, Kansas, Montana, New Hampshire, Rhode Island. South Carolina, Texas, and Utah. Other states like Alabama, Florida, Indiana, Pennsylvania, Ohio, and South Carolina recognize common-law marriages that were contracted in their state before certain dates. In recognizing common-law marriages within their jurisdiction, each state has its own standards and rules. While some states have particular laws to determine validity, others use public policy, natural law, or positive law.

Only common-law marriages that occur in states where they are permitted or considered legal are recognized by the federal government. That is common-law marriages in the states mentioned above. Within these states, common-law marriages can result in federal income tax benefits as well as immigration benefits such as permanent residency.