TN 11 (07-11)

PR 05605.046 South Dakota

A. PR 11–118 Does South Dakota Recognize a Common-Law Marriage in Iowa for Purposes of Paying a Spouse’s Benefit?

DATE: June 29, 2011

1. SYLLABUS

Although South Dakota law does not recognize common law marriages contracted after July 1, 1959, it does recognize valid common law marriages contracted in other states between individuals of the opposite sex. The claimant for spouse's benefits in this case cannot qualify as the NH's common-law spouse under South Dakota law because the claimant did not establish, by a preponderance of the evidence, the existence of a valid common law marriage in Iowa.  Specifically, the evidence provided does not establish that the claimant and the insured formed a present intent and agreement to be married while living together in Iowa from 1982 to 1992. Statements from the claimant and the insured suggest that they did not form the intent and agreement to be married until 1994, after they moved to South Dakota.

2. OPINION

QUESTION PRESENTED

The Kansas City Region has requested a legal opinion on whether South Dakota would recognize a common law marriage entered into in Iowa.

SHORT ANSWER

South Dakota does not recognize common law marriages contracted after July 1, 1959, but does recognize valid common law marriages contracted in other states between persons of the opposite sex. In Iowa, a common law marriage is valid if there is sufficient evidence of a present intent and agreement to be married, continuous cohabitation, and public declaration that the parties are husband and wife.  We doubt that a court would find that the claimant has established by a preponderance of the evidence a valid common law marriage in Iowa.  Currently, there is insufficient evidence that she and the insured formed a present intent and agreement to be married while cohabitating in Iowa. If the claimant cannot establish a valid common law marriage to the insured in Iowa, she is not entitled to wife’s benefits on his record.

FACTUAL BACKGROUND

According to the fact sheet you provided with the request from the Kansas City Region for a legal opinion (attached), the insured (Dave S~) applied for retirement benefits in November 1995.  He listed the claimant (Judy S~) as his wife and stated they had entered into a common law marriage in California on August 1, 1981. When the claimant applied for retirement benefits in November 2010, she stated that she and the insured entered into a common law marriage on August 1, 1981, in Sioux City, Iowa. We did not receive a copy of either application for retirement benefits or the claimant’s subsequent request to withdraw her initial application and to apply instead for spousal benefits on the insured’s record.

In support of her claim, the claimant provided two “Statement[s] of Marital Relationship” (Form SSA 754)—one signed by the claimant herself, and another signed by the insured. In addition, the claimant provided two “Statement[s] Regarding Marriage” (Form SSA 753)—one signed by the insured’s sister Phyllis R~, and another signed by the insured’s sister, Helen J. S~.  All four forms are dated October 31, 2010, and appear to have been completed in the same handwriting (but appear to be signed by different individuals). It seems likely that the claimant completed the forms, given that the insured’s form indicates, “Dave and I had over 200 people at our 25th wedding anniversary party” (section 20).    

The “Statement of Marital Relationship” form asks a number of questions regarding the relationship. The claimant and the insured provided similar answers to many of the questions.  Both indicated they began living together as husband and wife in December 1981 in California (section 4).  Both indicated they had lived together continuously since December 1981, including living together as husband and wife from 1982 to 1992 and in South Dakota since 1992 (section 5). 

In response to the question, “did you have an understanding as to your relationship when you began living together,” both the claimant and the insured responded “no” (section 6A).  The claimant indicated on her form that she had assumed the insured’s last name when they first began living together. In response to the question, “was this understanding later changed,” both responded “yes” (section 6B).  Asked to explain when and why the understanding changed, the claimant explained that in 1994 they started “filing jointly” and contributed to joint bank accounts in joint names. The insured also indicated the understanding changed in 1994, as “we had been together longer than our marriages so decided it was forever.”

In response to the question, “did you have an understanding as to how long you would live together,” both responded “yes” and stated they understood they would live together “[f]orever unless miserable” (section 7). In response to the question, “did you have any understanding as to how your relationship could be ended, both responded “no” (section 8).  The claimant stated that she believed that living with the insured made them legally married because “Iowa is a common law state” (section 9). The insured stated that he believed they were legally married because they “[r]esided together 10 yrs in [a] common law state” (section 9). 

When asked, “was there an agreement or promise that a ceremonial marriage would also be performed in the future,” both responded “yes” (section 10). In explaining why the ceremony was not performed, both referred to the fact that the claimant had not annulled a prior marriage. The claimant added that she is Catholic, and that her children from her first marriage did not want her to annul the marriage to their father (section 10).

The claimant stated on her form that she had previously been married twice. Her first marriage was a “church” marriage that ended in divorce in 1973; her second marriage was a “city hall” marriage that ended with the death of her husband in 1980 (section 21). In another section of the form, the claimant indicated, “my husband died previous to living together with David by 1 month – his divorce was final prior” (section 25).  The insured also listed two prior marriages and indicated that both marriages ended in divorce—the first in 1968 and the second in 1980 (section 21). 

The claimant and the insured both attested that they were shown as husband and wife on bank accounts and insurance policies since 1982, and on tax returns since 1994 (section 13). The claimant submitted as documentary evidence the first page of a 2005 tax return showing a filing status of “married filing jointly.” The claimant also provided a February 2010 Certificate of Occupancy from a home builder for a residence in South Dakota; a letter dated March 23, 2009, confirming an insurance policy; and a joint bank account statement dated January 9, 2010. These documents are addressed to the claimant and the insured at a South Dakota address and reflect the claimant used the name Judy S~, but do not provide any indication of marital status.

The insured’s sisters each completed a Statement Regarding Marriage (SSA Form 753). Both attested that the claimant and the insured maintained a home and lived together as husband and wife in Iowa for 10 years beginning in 1982 (sections 5, 7), that during this time they referred to each other as husband and wife at various social occasions (section 6), and that they had purchased homes and cars together (section 5).

DISCUSSION

Entitlement to Wife’s (or Husband’s) Benefits

To qualify for wife’s benefits based on the insured’s record, a claimant must show that she is the insured’s wife based upon a relationship described in 20 C.F.R. §§ 404.345 through 404.346.  See 20 C.F.R. § 404.330. To decide a claimant’s relationship as the insured’s wife, the agency looks to the laws of the state where the insured had a permanent home when the claimant applied for wife’s benefits.  If the claimant and the insured were validly married under state law at the time the claimant applied for wife’s benefits, the relationship requirement will be met. See id. § 404.345. Here, when the claimant applied for wife’s benefits, the insured resided in South Dakota. Therefore, the agency must determine whether the claimant and the insured are validly married under South Dakota law.

South Dakota Law on Common Law Marriage

 South Dakota does not recognized common law marriages contracted in the state on or after July 1, 1959. See S.D. Codified Laws § 25-1-29. However, South Dakota will recognize as valid “[a]ny marriage contracted outside the . . . state, except a marriage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriage was contracted . . . .” Id. § 25-1-38.  Therefore, the claimant must show that she and the insured established a valid common law marriage in Iowa. Although the claimant and the insured also alleged they first began living together as husband and wife in 1981 in California, as you know, California does not recognize common law marriages contracted in the state. See POMS GN 00305.075

The Claimant Has Not Established a Common Law Marriage to the Insured in Iowa

Iowa recognizes common law marriages contracted in the state, if there is sufficient evidence of the following three elements:  (1) a present intent and agreement to be married, (2) continuous cohabitation, and (3) public declaration that the parties are husband and wife. See In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004); see also Iowa Admin. Code r. 701-73.25(425); POMS PR 02720.018 Iowa (listing requirements of common law marriage in Iowa). We note that POMS 00305.075 (State Laws on Validity of Common-Law Marriages) does not appear to be consistent with these requirements, to the extent that it indicates (for Iowa) “Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.” As outlined above, both Iowa case law and the Iowa Administrative Code indicate continuous cohabitation is required to establish a common law marriage. We recommend updating POMS 00305.075.  A claim of common law marriage is regarded with suspicion and is closely scrutinized. See In re Grother, 242 N.W.2d 1 (Iowa 1976). The burden of proving a marriage rests with the party asserting the claim, who must prove the marriage by a preponderance of the evidence. See In re Marriage of Winegard, 257 N.W.2d 609, 615 (Iowa 1977); cf. State v. Ware, 338 N.W.2d 707, 711 (Iowa 1983) (stating proof of a common-law marriage must be by a preponderance of clear, consistent, and convincing evidence). “Preponderance of the evidence is evidence that is more convincing than opposing evidence. Preponderance of the evidence does not depend upon the number of witnesses testifying on one side or the other.” Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008). “If any of the essentials of a common-law marriage are lacking, the relationship . . . is not a marriage.” In re Fisher’s Estate, 176 N.W.2d 801, 804 (Iowa 1970).  See also POMS GN 00305.060 (general requirements for common-law marriage).

We do not think that a court would find that the claimant has established the existence of a common law marriage by a preponderance of the evidence. The evidence submitted by the claimant in support of her application for wife’s benefits includes statements signed by the claimant, the insured, and his two sisters. All attest that the claimant and the insured resided together for 10 years in Iowa as husband and wife and publically declared themselves as married. While these statements appear sufficient to establish the elements of continuous cohabitation and public declaration, we do not think there is sufficient evidence to establish the first element—that the claimant and the insured formed a present intent and agreement to be married while living together in Iowa from 1982 to 1992. 

First, the claimant and the insured gave conflicting statements regarding the date and location where they began living together as husband and wife. According to the fact sheet you provided, both the claimant and the insured initially stated that they began a common law marriage on August 1, 1981; the insured represented this in his November 1995 application for benefits indicating the marriage began in California, and the insured in her November 2010 application for benefits indicating the marriage began in Iowa. On their respective “Statement of Marital Relationship” forms, however, both stated they began living together as husband and wife in California on December 1, 1981 (section 4). In addition, the claimant appears to have provided inconsistent information regarding when her prior husband died—at one point indicating 1980 (section 21, indicating her prior marriage ended by death in 1980) and elsewhere indicating 1981 (section 25, indicating “my husband died previous to living together with David [i.e., in either August or December 1981] by 1 month”).  These discrepancies cast some doubt on the overall credibility of the statements provided by the claimant and the insured.

Most significantly, the claimant and insured made statements suggesting they did not form the intent and agreement to be married until 1994—when the couple was no longer living in Iowa and had moved to South Dakota (which does not recognize common-law marriage). Both the claimant and the insured indicated that they did not have any understanding as to their relationship when they began living together (section 6A).  And both indicated that this understanding changed in 1994—when the couple no longer lived in Iowa. The insured indicated that his understanding as to their relationship changed “[a]fter 1994 [when they] had been together longer than [their] marriages so decided it was forever” (section 6B).  The claimant stated that her understanding changed in 1994 when she and the insured began filing their taxes jointly and contributing to a joint bank account (section 6B). These statements strongly suggest that both the claimant and the insured formed the intent and agreement to be married in 1994—rather than in 1981 when the couple began living together. We think a court would view these statements as strongly undermining the claimed common-law marriage.

Several other statements regarding the relationship are at best ambiguous regarding the couple’s intent and agreement to be married.  For example, both the claimant and the insured stated that they would live together “forever unless miserable” (section 7). This statement to some extent reflects the couple envisioned a lifelong commitment—similar to a marriage.  But both the claimant and the insured also indicated that they had no understanding as to how the relationship could be ended (section 8). Read together, these statements suggest that the couple thought they could part ways at any time.  In addition, both the claimant and the insured also indicated that there was an agreement or promise to have a ceremonial marriage in the future (section 10), which could also be viewed as detracting from the present-intent-to-be-married requirement.  See State v. Grimes, 247 N.W. 664, 665 (Iowa 1933) (agreement to live as husband and wife until later lawfully married does not establish present intent to enter into marriage relationship). 

Lastly, none of the documentary evidence provided helps establish that the claimant and the insured had the intent and agreement to be married while living in Iowa (from 1982 to 1992).  Although the claimant and insured both referenced having bank accounts and insurance policies showing them to be married and dating back to 1982 (section 13), all of the documents provided are from 2005 or later, and show a South Dakota rather than Iowa address.  In addition, only the tax return (for tax year 2005) reflects marital status.

In sum, statements from both the claimant and the insured suggest that they did not form the intent and agreement to be married until 1994, after they moved to South Dakota.  Further, the claimant has provided no documentary evidence to corroborate her claim that she and the insured had bank accounts and insurance policies showing them to be married during the time they lived in Iowa, and there are a number of inconsistencies that undermine the reliability of the statements in general.  Based on the evidence provided, we do not think a court would find that the claimant established by preponderant evidence that she and the insured intended and agreed to be married while residing in Iowa.

CONCLUSION

The claimant has not satisfied her burden of proving by a preponderance of the evidence that she and the insured entered into a valid common law marriage in Iowa.  We do not think a court would find that the claimant and the insured had the requisite intent and agreement to be married while residing in Iowa from 1982 to 1992.  If the claimant presents any additional evidence or documents, we would be happy to review them.

John J. L~
Regional Chief Counsel, Region VIII

By: ____________
Yvette G. K~
Assistant Regional Counsel


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PR 05605.046 - South Dakota - 07/11/2011
Batch run: 07/11/2011
Rev:07/11/2011