Common law marriage?

October 1, 2005 4:29 AM

Common law marriage experiences?

In the state I live, Iowa, common law marriages are legal and relatively easy to formalize from what I've read. My question is, who out there has gone the common law marriage route and what problems have you faced?

I've read about potential downsides (a situation where you might have to "prove" the marriage existed, like in the event of a spouse dying, dealing with property, etc.), but it seems like since it's a legally accepted form of marriage, why not do it and save the $35 license fee (or more, if you are married in another state)?

What other procedures did you have to go through, legally changing name, etc.? Some sites I've seen suggest just to go the official route to be safe... but I'd like to hear from others.

posted by anonymous to Law & Government (15 answers total)

I don't think I completely understand your motives here. Are you trying to do this only to save on the marriage-license fees? If so, that seems kind of odd.

Common law marriage exists to protect people who live and act as if they were officially married, not as a viable option for planning their lives.

Imagine the worst-case scenarios: your "husband" needs medical attention but the hospital won't accept your consent because you are not legally married, your "wife" dies but you are unable to inherit any of her property, etc.

If you want to be married, a simple ceremony at the courthouse is nothing to be ashamed of, and gives you the official legal status, and all of the protections that come along with it. Without a marriage certificate, you are constantly living in the unknown. Although you might be able to litigate your position, why would you want to when you can prevent confusion?
posted by MrZero at 4:48 AM on October 1, 2005

I can't speak for Iowa, but in Georgia, it was a one hassle after another, especially concerning health insurance.
posted by mischief at 7:25 AM on October 1, 2005

Agree with MrZero. If there's no reason NOT to get married, and you otherwise intend to spend your lives together, getting married by The Man will save you a lot of hassle. Every situation that comes up, it will be either:

a) show pictures of you two together. Prove you've lived together for at least X years. Prove that you've mingled your finances and so on.

or

b) show a marriage certificate.

The first time you have to do a) instead of b), you'll spend $35 in hassle. By the 20th time, you'll be way, way behind. And if the worst-case scenarios happen, it'll be the worst $35 you ever saved.
posted by jellicle at 7:26 AM on October 1, 2005

[breaking the rules? new angle on the question]

But what about common law marriage as an option for those of us who aren't queer, but can't stomach making our queer friends second-class citizens by taking part in a 'simple ceremony at the courthouse' that so many are denied?
posted by eustatic at 7:28 AM on October 1, 2005

Eutastic, your queer friends are denied common-law marriage as well. If you want to avoid marriage out of solidarity, then it would only make sense to extend that to common-law marriage as well.
posted by grouse at 7:51 AM on October 1, 2005

You may also want to consider the divorce procedures in Iowa for common-law marriages. They may or may not be more complicated if the marriage is common-law.
posted by mischief at 8:19 AM on October 1, 2005

You may also want to consider the divorce procedures in Iowa for common-law marriages. They may or may not be more complicated if the marriage is common-law.

This likely doesn't matter. From a divorce perspective, marriage is marriage, and the only additional step in such a divorce would be the burden to prove such a marriage in the first place. States are free to change this by statute, but it doesn't make much sense and certainly isn't grounded in the common law.
posted by Saucy Intruder at 8:30 AM on October 1, 2005

For an interesting take on the problems inherent in showing common law marriage, take a look at the facts behind Jennings v. Hurt. (Celebrities - They're Just Like Us!)
posted by Saucy Intruder at 8:33 AM on October 1, 2005

I would first tell you to ignore those who are saying you absolutely must get married. There are plenty, PLENTY of reasons to choose another route and just because it's always been done, doesn't mean it's the right choice. Everyone's correct -- it will be a more difficult route, but it's not impossible. You can get a Medical Power of Attorney to cover many issues that arise. I'm not an expert, so if you're serious, you might want to talk with people who would have some knowledge about some what-if situations. I know here in Minnesota (which doesn't support common-law marriage), you can get a domestic partnership certificate that can be presented in lieu of a marriage certificate in many situations.

I've also chosen not to get married, for political and personal reasons. I have friends who've been together for many years, have children and aren't married. They've been just fine. The most difficult thing for them, and for me (I've only been with my partner for 3.5 years, so I haven't hit all the bumps yet) is the battles with those people who think it's stupid or inconceivable that I don't just waltz down to the courthouse and just do it because, gosh, things will be so much easier! Well, things aren't hard, especially if you have your bases covered. I'm looking into preparing for those dire moments, and beyond that, marriage isn't something I desire or need. I respect those who do get married; I think it's time for married folks* to return the favor.

*Obviously, this isn't an all-inclusive term.

(Also, the main argument that springs up is about regulation and how any 15-year-old with a high school boyfriend could declare they're married under these premises, but the only way to regulate properly would be to abolish, and we're no where near that.)

Also, this is a website that might provide some answers.
posted by Zosia Blue at 9:07 AM on October 1, 2005

Everyone's correct -- it will be a more difficult route, but it's not impossible.

But the asker didn't say anything about the feasibility of common-law marriage as a political or personal statement, the asker wondered if a common-law marriage was a smart way to save $35 on a license.

It isn't.
posted by ROU_Xenophobe at 9:24 AM on October 1, 2005

True, ROU_Xenophobe, but that was one question in a paragraph of many. The asker did inquire about problems others have faced, which was the section I was addressing.
posted by Zosia Blue at 9:42 AM on October 1, 2005

I'm an American but Australia recognized my relationship as "defacto", which is basically a "common-law" marriage. It applies to everybody, gay and straight, and the only requirement for me was that we'd lived together for more than a year. I was able to get a Spousal Immigration Visa, and if we'd split up I'd have been entitled to half the property, possibly support, etc. There isn't any stigma associated with being defacto here; a lot of people do it. You don't get that kneejerk "But the children's names won't match both the parents'!" hysteria like you do at home. Unfortunately, knowing that my home country isn't nearly so enlightened and figuring that we might want to move there someday, last year we took the plunge and got married in Vegas. I'd had a lot of personal and political reasons why I didn't want to do it - especially just to get a stupid piece of paper! - but for anyone in a relationship with a non-American citizen, it's pretty much required.
posted by web-goddess at 3:42 PM on October 1, 2005

Common law or formal marriage, take a bit of time to understand the law on property, marriage and divorce in your state. I'm very sorry my marriage ended in dovorce, and glad that some simple actions saved my house, in which my I/we had invested inherited money and money from prior to my marriage.
posted by theora55 at 4:52 PM on October 1, 2005

I think you misunderstand the nature and purpose of common law marriage.

If you actually want to have a reliably legally enforceable marriage, you need to regularly married. You can never fully rely upon common law marriage, because by its nature it's a legal test which is applied retroactively and subjectively in a crisis. And this is especially true if you have or intend to have a marriage which is unconventional by local terms. No one can question the legal validity of a regular marriage if a wife doesn't take her husband's last name, or keeps her own apartment in the city for the convenience of her work, but those things directly undermine the establishment of a common law marriage.

And in divorce, God help you -- then you not only have to satisfy the state's burden, but your ex and his/her friends and family can freely testify to defeat the common law test if the monetary or child custody results of just having been shacked up are more favorable.
posted by MattD at 9:09 PM on October 1, 2005

I know someone who served on a jury in a common law marriage divorce case in Georgia and said it was the biggest mess she could have imagined. Georgia outlawed the practice soon thereafter because of those problems.

I know someone else who, I have been told, was once married through common law. She is no longer married and I'm fairly certain she didn't divorce -- unless maybe a common law divorce? (I imagine: "You take your half and get the hell out." They had few assets worth litigating.) So if you're thinking of a way to be married, say you're married, but get out quickly, easily, and cheaply, this sounds like a possibility. Oh, unless your SO has other ideas if that time comes -- in which case, it would be slow, difficult, and not cheap at all.

I think common law marriages probably made sense hundreds of years ago, when one wouldn't want to have to find a judge (or earl or whatever) to sanctify what you, God, and everybody knew was a marriage. Just like how common law to this day, AFAIK (IANAL), allows one to change his or her name to whatever one wants. Which was all well and good. That is until we got advances like social security cards, credit ratings, child support, etc., that require some consistency and some legal documentation of a marriage, name change, or whatever, at the risk of causing serious confusion.

If saving $35 or making a statement or being unique is a really big deal to you, then CL might be the way to go. If none of that really matters, maybe the better question to ask is, "Why NOT go to the courthouse?"
posted by SuperNova at 10:13 PM on October 1, 2005