Common Law Marriage, Social Security, and Divorce
An introduction into common law marriages in Iowa and the impact upon social security following a divorce
Common Law MarriageUnder Iowa law, there are two ways for a couple to legally marry. The first is the traditional way: apply for a marriage license at your local courthouse and have a magistrate, judge, church clergy, Viva Las Vegas ordained minister, etc. perform the ceremony. The other way is with an implied "I do" under common law. The term, "common law," all-too-often gets thrown around loosely. I've seen numerous instances where a live-in girlfriend or boyfriend thinks they are married by common law when that's just not the case.
For inheritance or divorce purposes, whether a person is married by common law is up to the Court. In making its determination, the Court will look at various factors. In order for a marriage to be recognized under common law, the Court must find that the parties cohabitate and have a mutual agreement to be each other's spouse. The following four factors must exist:
1. Present intent of both parties;
2. Both parties publicly declare themselves to be married;
3. Continuous co-habitation; and
4. The parties are legally capable of marrying.
Proving the intent of both parties is generally the toughest part of evidencing a common law marriage. If I'm representing a client who needs to prove he/she was married by common law (whether for inheritance or divorce purposes), I want concrete examples of both parties holding themselves out to the public as a married couple. Referring to each other as husband/wife/spouse, filing joint tax returns, naming each other as beneficiary of insurance policies, maintaining joint bank accounts and credit cards, and purchasing joint property are good facts to have on our side. Exchanging wedding rings and sharing a last name are two other symbolic factors that can further evidence the couple's intentions.
Contrary to what many believe, in Iowa you do not have to cohabitate for a certain amount of time in order to be married by common law. I've had clients who have lived together for twenty or more years and are still not married by common law. Similarly, a couple who has only lived together for a short time may be married by common law if the four factors exist.
Keep in mind that common law and traditional marriage are the same in regards to validity. Once you are married in Iowa you remain so until death, or divorce, do you part. Significantly, not all states recognize common law marriage, so major issues can occur if an Iowa common law married couple relocates to a state that doesn't recognize common law marriage. If that couple wants to divorce in a state that does not recognize common law marriage, one or both of the parties may be very upset to learn that their Court won't entertain a divorce action.
All sorts of happy, sad, "Jerry-Springer worthy" results can come from a common law marriage. As with most things, the key is to understand the law and know how your actions or inactions may significantly affect you or your loved ones.
Divorce and the Effects Upon Social SecurityThe concept of divorce generally carries with it a very negative connotation, and rightly so. Parents with minor children find themselves forced to follow a schedule as to when they see their kids, property is divided, debt is allocated among the parties, and emotions are often at an all-time high. Further, divorce affects not only the two divorcees, but their children, parents, in-laws, siblings, mutual friends, and so on. The impact is undeniable. That said, with some proper planning, there are ways to help minimize the negative impact of a divorce, and even position yourself for capitalizing upon your fresh start.
Many people do not realize the extreme benefits of Social Security, and more specifically, the fact that a divorce does not necessarily prevent a person from electing Social Security benefits of an ex-spouse. The rules are a bit complicated, but generally speaking, you may receive one-half of the monthly Social Security benefits based on your ex-spouse's work record if: (1) your marriage lasted at least ten years; (2) you are currently unmarried; and (3) you are age sixty-two years or older. It doesn't matter if your ex-spouse is taking his/her Social Security benefit, nor whether there have been multiple marriages and divorces. Nor does the ex-spouse have any control, or even know whether you choose to elect to take against his/her benefit.
Contrary to what many people think, the fact that a former spouse may elect one-half of an ex-spouse's Social Security benefits does not in any way affect the former spouse's Social Security. As such, if a breadwinner is married and divorced three times, for example, all three of his/her former spouses may elect one-half of his/her Social Security once the former spouse turns age 62, is single, and was married to the person for at least ten years. In other words, "When Harry Met Sally" can turn into "When Harry Married Sally, Then Susan, Then Samantha." If Sally, Susan, and Samantha each married Harry for at least ten years, are single, and at least age 62, all three women can elect fifty-percent of Harry's Social Security earnings, all while Harry still gets his full Social Security benefits!
Of course, unlike Social Security, other financial sources are not nearly as generous. A divorced person who forgets to remove his/her former spouse from a financial account may end up losing that benefit to the former spouse upon his/her death, or at the very least, cause a great deal of grief for his/her loved ones. Even if the newly divorced person is prudent and updates his/her Last Will and Testament to remove his/her former spouse as a beneficiary under the Will, trouble can still arise if divorcees do not update their beneficiary designations of their life insurance, retirement accounts, and other financial policies.
Payable on death beneficiary designations supersede the terms of a Last Will and Testament. Therefore, even if Harry's revised Will removes his former wives as a beneficiary, the life insurance company or other financial institution may mistakenly release the funds to the former wife listed as beneficiary of the policy, or at least hold on to the funds