Common Law Marriage

Sometimes, I will get a phone call from a prospective client claiming he or she has a common law marriage, but without a firm grasp on what that really means. It is a common misconception that a couple must live together for a specific period of time before they are considered common law married, but under Iowa law, that is not how it is determined.

The most comprehensive discussion of Iowa common law marriage recently has been the case In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004), and therefore that is the case I am using to outline Iowa law on this topic.

At the outset, it is important to understand that Iowa law does not favor common law marriage. That means that the party asserting there was a common law marriage bears the burden, and such claims are "carefully scrutinized." So it is no easy feat to have a common law marriage declared. To establish a common law marriage, one must prove three elements: present intent and agreement to be married by both parties, continuous cohabitation, and a public declaration that the parties are married. 

Present Intent to be Married: This element reflects the contractual nature of marriage, requiring agreement by both parties, like any other contract. This agreement does not have to be express, meaning the parties do not have to discuss and decide to be married. Instead, it is usually sufficient for one party to intend to be married, and the other to act in such a way to indicate he or she agreed. Evidence of present intent to be married consists largely of the conduct of the parties and their reputation in the community as a married couple (if neighbors, teachers, etc. thought the couple was married). Please note that this is present intent to be married, not future intent. That is, if the couple was engaged to be married some time in the future, there is no common law marriage.

Continuous Cohabitation: Living together alone does not establish common law marriage, but is considered basic to establishing that a couple is married. There is no specific time that a couple must live together. It is an extension of proving the present intent to be married, so this factor will balance against other factors in each given case.

Public Declaration: The Iowa Supreme Court considers this to be the acid test for common law marriage. A couple must hold itself out as married to be common law married. Some inconsistent statements are allowed. In general, the Court will look for a substantial holding out to the public as married.

All of these elements are very fact-specific. That is, whether a specific couple is common law married is going to depend very much on the facts surrounding that specific couple. An attorney can help analyze the issues, but the final determination will have to be made by a judge.

Why would someone want to be established as common law married? It usually arises in one of two factual scenarios. First, one of the parties has died, and the other would like to recover under his or her estate as the spouse. Second, one party leaves the other party, and a party would like to have the property divided through a divorce rather than based on pure ownership. That is the most important thing to remember about common law marriage: once you are in one, it takes a divorce to get out of the marriage. Be careful what you ask for. 

Restraining Orders

There are several types of Orders that prevent people from contacting other people in Iowa. Some are issued by the Court or the State itself, such as ones arising from a criminal case or from a juvenile court case. Some are issued between people who are not romantically involved, like a co-worker or neighbor. I am not going to discuss these.


People who call me are usually interested in a Chapter 236 Protective Order. This is set up to be a do-it-yourself no contact order; the form is available from the Clerk of Court and on the internet through the Iowa Judicial Branch, and can be completed without a lawyer. 


Chapter 236 is the chapter of the Iowa Code dealing with domestic abuse. Therefore, this type of Order, as noted above, applies only to a few very specific relationships: family/household members living together at the time of the assault or within one year prior, spouses who are separated or divorced, parents of the same minor child, or persons in an intimate relationship. Any need for a no contact order in another type of relationship will need to be handled in a different manner.


The form is fairly straight-forward, requesting such information as names, addresses, birth dates, and locations of employment. The form will ask whether the Defendant has physically abused, sexually abused, or threatened to abuse in such a way as to cause fear of physical safety. These are the only categories available for this type of no contact order. It is not available if the ex keeps calling, threatens to take the kids, calls your family to tell them you are a bad person, or a whole list of other annoying, objectionable, but not threatening, behaviors. 


The form then asks for narration of what has happened in the abuse or threats. This is the chance to tell the judge your story. Remember the Defendant will also receive a copy of this form. You may attach additional paper to ensure your entire story is heard, so do not leave out incidences for lack of space.


You can request, as part of this application, to have mutual children's visitation and contact considered. Most likely, the Judge will simply make sure exchanges of the children for visitation do not violate the no contact orders, by figuring out a different exchange schedule. The Court might figure out a visitation schedule in the very short term, but generally will want this to be determined in a custody case rather than a no contact order case. 


Two types of no contact orders can stem from this application. The first is an emergency or temporary no contact order. It would be in effect from the time of the application for about two weeks. It is ordered based on the written application only, without the chance for the Defendant to respond. This is the reason for its short duration. It can also request possession of the house, financial support, and custody of the children.


Those provisions are also available in the permanent no contact order. This will last for one year, but a hearing has to be held first, where the Defendant will get to speak and argue against it. At the end of the year, an extension can be granted if needed.


Two more things about no contact orders. First, if you decide the no contact order is not helpful or is causing more trouble than good, you will have to ask the Court to drop it, which the Court may or may not do. The Court will want to make sure you are making the right decision. Second, while this paper says the Defendant cannot contact you, it really only gets that person arrested if he or she does contact you. So be safe before that happens to prevent even worse consequences from arising before the police can be called.

Legal Custody? Physical Custody? Both?

This conversation happens in the majority of my intakes of custody or divorce clients: the potential client will say he or she wants sole custody, but when pressed, the client has a vague understanding of what that means. Sometimes the understanding is completely wrong. So, here is your quick primer on what those terms mean. 

Technically speaking, the term "physical custody" doesn't really exist in Iowa. In an attempt to clarify the confusion, the Legislature now refers to "legal custody" and "physical care." However, that does not mean people don't still use the terms interchangeably or confuse the two. After all, custody just sounds like something that involves day-to-day care of the kids. 

Iowa Code 598.1 outlines definitions of words used in the Dissolution of Marriage provisions of Iowa law, so we are all on the same terms when discussing these issues. This section defines "physical care" as "the right and responsibility to maintain a home for the minor child and provide for the routine care of the child." In contrast, "legal custody" or "custody" gives the parent certain rights and responsibilities toward the child, including (but not limited to) "decision making affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." 

Now in English: physical care defines where the child sleeps most nights. Legal custody defines who makes decisions about the child, including such things as whether to have the child baptized and in what church, whether the child takes dance classes or piano lessons, or whether to spend the money on braces when the dentist says they will be purely cosmetic.

Most people that say they want sole custody mean that they want primary physical care. They want to be the parent to maintain the primary home for the child. Lots of parents do not mind consulting with the other parent to make such important decisions as religious, medical, or educational decisions. This inclusion of the non-custodial parent in these decisions tends to make that parent still feel involved, and less like a weekend-only parent. It can also reopen lines of communication that have undoubtedly been damaged during the break up. 

However, there are some parents that request sole legal custody and mean it. Usually the other parent in these situation has a history of domestic violence against the children or parent, a history of drug use, or serious mental health issues. But it can also be cases where the two parents can barely agree on anything, or one parent just wants to punish the other. 

Whether to seek sole legal custody, or even primary physical care is, of course, a decision that can only be made based on the facts in any given case. But understanding the key words involved in the conversation with an attorney will only help clarify for both of you what is really desired.

Books to Help Children Understand Divorce

There is a plethora of literature out there to help children of all ages deal with divorce. They vary on the child's age, the message (such as separation, blame, or coping with two households), and even the amount of guidance provided to the parents. I have included a smattering of such books available. I urge anyone considering purchasing, borrowing, or checking out these books to read reviews and contents to make sure the book fits your family situation. Again, there are many more out there. This is just a good place to start your search.


I gathered the intended ages from either professional reviews or the information provided by the author. Again, check for yourself, as your child may have needs that are traditionally seen in a different age group.

• Dinosaurs Divorce, Laurene Krasny Brown and Marc Brown; ages 1-6
• Was it the Chocolate Pudding?, Sandra Levins; ages 2-6
• Two Homes, Claire Masurel; ages 3-6
• The Invisible String, Patrice Karst; ages 3+
• Where am I Sleeping Tonight?, Carol Gordon Ekster; ages 3+
• Standing on My Own Two Feet, Tamara Schmitz; ages 4-6
• It's Not Your Fault, Koko Bear, Vicki Lansky; ages 4-7
• My Family's Changing, Pat Thomas; ages 4-8
• Mom's House, Dad's House For Kids, Isolina Ricci; ages 10-14

Feel free to let me know any others that have been helpful for you or your children! 

Facebook and Family Law: Internet Drama IRL

You just got into a huge fight with your ex over when the exchange for the kids will occur. In a fit of rage, and looking for a little commiseration, you take to the almighty Facebook. “Some people suck. Think about your kids, idiot.”

Admissible? Probably. Facebook is akin to standing on a stage and yelling things at a crowd. It might be a crowd that you have invited over, but you yelled it nonetheless. And when your ex finds out you have been saying things on Facebook, probably from a mutual friend who took his or her side, you will be asked about it, in court, under oath, where you have to tell “the truth, the whole truth, and nothing but the truth.” Don’t forget, too, that the other attorney could probably force you to release this information, and will probably get it even if you object.

When the other attorney asks you if that post was about your ex, what are you going to say? You cannot lie, so you are going to have to admit this vague post was about the ex. So the vagueness was a huge waste of effort. You are certainly better off to have never said it at all.

It gets worse. Once these posts are up, you may be destroying evidence by taking them down. So the best solution during a custody battle is to leave your Facebook page up, including all content thereon, but don’t add anything, or limit the posts to positive, light-hearted, and certainly true, information.

And it gets even worse. Even things third parties have written about you or to you could be used in court. It is a little more difficult to get into evidence, but it can, and has, been done. Recently, there was a contempt hearing, where Dad had not paid a variety of expenses for his kids that he was court-ordered to pay. He defended himself by arguing he couldn’t afford to pay the expenses. His step-daughter’s recent Facebook posts were admitted to show he was lying. The posts in question thanked Dad, by name, for the recent purchase of a car for her. The judge was less than amused, and made it clear in the Order finding Dad in contempt.

This is my food for thought: maybe, during a custody battle or other family legal argument, you should treat your Facebook page like an acquaintance on the street who just asked you how your day is going: pleasantries only, no real details. Rather, if this is someone you want to give the full story, have lunch or private message them. Don’t yell it from the stage.