TN 1 (11-07)
PR 02720.018 Iowa
A. PR 07-035 Request for Legal Opinion Regarding Proof Needed for Name Change Due to Common Law Marriage in Iowa and Kansas
DATE: April 7, 2006
In the State of Iowa, to change one's name for SSA purposes due to common law marriage in Iowa, the numberholder must present a court order name change.
As you stated in your memorandum, section 7213(a)(1)(B) of Public Law 108-458 the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requires SSA to establish minimum standards to establish eligibility for original and replacement Social Security cards. One of the new requirements implemented requires the SSN card applicant to use their legal name and when changing their name, the applicant must present a name change document. See POMS RM 00203.200 and RM 00203.210. As you noted in your request, the State of Iowa and the State of Kansas continue to recognize common law marriage. However, proof of a common law marriage is not accompanied by any name change document. You requested advice regarding the documentation required to be presented by a number holder in order to change his/her name due to a common law marriage in the states of Iowa and Kansas.
The three criteria necessary to find a common law marriage in Iowa are: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. In re Marriage of W~, 278 N.W.2d 505, 510 (Iowa 1979). The burden of proof is with the party asserting the existence of a common law marriage. Id. A claim of common law marriage is regarded with suspicion and is closely scrutinized. In re Marriage of G~, 242 N.W.2d 1, 1 (Iowa 1976). While the common law does not prevent the change of one's name, as a personal preference, a legal name change for state identity purposes, is only possible with (1) a court ordered name change; (2) a divorce/annulment decree; or (3) a certified marriage license/certificate. See Iowa Admin. Code § 601.5(3). In the event of a common law marriage, the only possibility would be item number (1). Thus, in order to change one's name for SSA purposes due to a common law marriage in Iowa, the number holder must present a court ordered name change document.
The essential elements of a common law marriage in Kansas are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife in public. In re Estate of A~, 993 P.2d 637, 647 (Kan. 1999). In Kansas, a name change due to a common law marriage for state identity purposes can be obtained by presentation of a “common law certificate.” The common law certificate can be obtained at the local driver's license office. The common law certificate must be signed by both parties and notarized. See Kansas Department of Revenue, Driver's License Information, http://www.ksrevenue.org/dmvproof.htms, in order to change one's name for SSA purposes due to a common law marriage in Kansas the number holder must present a State of Kansas driver's license or State of Kansas identity card reflecting the new name and the underlying notarized common law certificate.
We hope this is helpful to you.
Frank V. S~ III
Chief Counsel, Region VII
Ann K. R~
Assistant Regional Counsel