Legal Articles

facts and myths regarding common law marriage in Iowa.

By Chandler Surrency | Hopkins & Huebner, P.C. | Des Moines Office

Surrency-380x360.jpgWe’ve all heard the myth that if you live together for seven years, then you are common law married.  Well I am here to tell you that isn’t the case.  In fact, many states do not even recognize common law marriage.  Iowa is in the minority of states that still recognize common law marriage, but there is no public policy favoring this type of union.  Therefore, claims of common law marriage are carefully scrutinized.There are three things that must be shown in order to prove a common law marriage, and only one of them has to do with living together.

  1. 1. Present intent and agreement by both parties to be married
  2. 2. Public declaration that two people are married
  3. 3. Continuous cohabitation

The first thing that determines a common law marriage is a present intent and agreement by both parties to be married.  There does not have to be an express agreement.  Rather, an implied agreement may support common law marriage if one party intends present marriage and the other party reflects the same intent.  However, an intent to be married at a future time is not sufficient to prove a present intent to be married.The second requirement is a public declaration that two people are married.  This requirement does not mean that all public declarations must be entirely consistent with marriage.  A substantial holding out to the public is generally sufficient.  Examples of a public declaration include using the same last name, filing joint tax returns, sharing bank accounts, wearing wedding bands, or referring to each other as spouses.The third thing that determines a common law marriage is continuous cohabitation.  There is no specific time requirement for cohabitation, but the living together must be constant, rather than only on weekends or other narrow times.  It is also important that the cohabitation be tied to the present intent and agreement to be all three of the above requirements are met, then two people will be considered common law married.  Interestingly, although a formal process is not required for a common law marriage, legal proceedings are required to dissolve all types of marriage, including common law.Of course the marital status of a couple becomes an issue in domestic matters, but what other situations may be affected by marriage?  Common law marriage may be relevant in probate cases, workers’ compensation claims, personal injury cases, social security claims, tax challenges, and criminal matters.  If you have questions about how your marital status may affect a particular situation, contact an experienced attorney for help.