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8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared
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M E M O R A N D U M
To: Assigning Attorney
From: Jared S. Mermelstein
Date: September 22nd, 2011
Subject: Our File # 0174-09; common law marriage; Michael Moskowitz
Discussion
The relationship between Michael Moskowitz and Daisey does not qualify as a
marriage under Iowa common law. To establish a common law marriage the party
asserting the relationship must prove present intent and agreement to be married
by both parties, continuous cohabitation, and public declaration that the parties are
husband and wife. In re Marriage of Martin,681 N.W.2d 612, 617 (Iowa 1970). All
three of these elements must be satisfied in order to establish a common law
marriage. This purpose of this memorandum is to address whether the element of
public declaration was satisfied in the relationship between Mr. Moskowitz and
Daisey, therefore, the other elements of common law marriage will not be discussed
Mr. Moskowitzrelationship with Daisey does not satisfy the public declaration
element of Iowas common law marriage. To determine whether a couple publicly
declared themselves to be married, courts evaluate the way in which the couple
represented themselves in social settings within their community, andwhether
there were official documents or accounts that support a declaration of marriage.Martin,681 N.W.2d 612, 618. There is no presumption that people are married and
the courts will closely scrutinize such a claim under the common law. In re Marriage
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of Fisher, 176 N.W.2d 801, 805 (Iowa 1970). Given the evidence,the court will likely
rule that Mr. Moskowitz fails to satisfy the element of public declaration.
Identifying one another publicly as husband and wife, as well as adhering to other
social conventions of marriage,factor as evidence that supports a couplespublic
declaration of marriage. The public declaration common law marriage element of
common law public declaration means there can be no secret common law
marriage. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977). Public
declaration is satisfied if the partiesrepresent to the public that they are in fact
husband and wife. Id. at 617. In In re Marriage ofWinegard, the couple was
addressed as Mr. & Mrs.,the woman donned a wedding ring, and she informed
people in the community of their marriage. Id. at 612. In finding that their
declaration to the public was one constituting a marriage the court gave great
weight to the failure of the man to deny the marriage, his acquiescence of the
womans use of his last name, and the receipt of a wedding ring. Id. at 616-17. The
willingness of a couple to publicly recognize one another as husband and wife is
consistent with the existence of a common law marriage relationship. Fisher, 176
N.W.2d at 806.
Mr. Moskowitz and Daisey publicly represented themselves, and were regarded by
their community, as a married couple. In our case, as in Winegard, Daisey publicly
declared via her relationship status on Facebook, that she was in fact married to Mr.
Moskowitz, and Mr. Moskowitz failed to deny this assertion. This declaration was so
public that even mere acquaintances of the couple commented that their
relationship was now made official. Following her status change on Facebook, Mr.
Moskowitz purchased a faux-diamond ring and presented it to Daisey in order to
make their relationship really official. This ring, worn by Daisey every day until
the termination of the relationship, acted as notice to the public that she was
married. Furthermore, Daisey was known as Mrs. Mick,a title that, in the
homeless community where last names are not used, is analogous to being called
Mrs. Moskowitz. Since Daisey publicly asserted that she was married, the
community recognized their marriage by calling her Mrs. Mick, and she wore a
Comment [jm3]: Rule Expl sociaconvention
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and then move it up to the thesis p
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moving it to thesis paragraph
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convention
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Look at the spelling of that case.
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wedding type ring, her relationship with Michael satisfies this factor of public
declaration.
Daisey will argue that the factor of representing themselves as married has not been
satisfied because she was never addressed as Mrs.Moskowitz nor did they ever
introduce one another as husband and wife. She will also assert that they did not
adhere to social conventions because the ring she wore was from a gumball machine
and thus not the type commonly associated with marriage. These arguments are
without merit. It is clear from the record that the community within which they
resided considered Michael and Daisey to be a married couple. It is true that Daisey
was not referred to as Mrs. Moskowitz, and the ring was only worth a dollar.
However, none of this negates the fact that within the sub-culture in which they
resided they represented themselves as married and adhered to social conventions
as much as their lifestyle permitted.
Declaring a relationship status of marriedon official documents and holding joint
bank or credit accounts supports a finding of a couples public declaration of
marriage. Where there is an assertion of common law marriage, the courts will
carefully scrutinize the evidence and, if any of the elements are lacking, will
presume against the finding of a marriage. Fisher, 176 N.W.2d at 804. In In re
Marriage of Fisher, the woman used the mans last name, with his knowledge, on
hospital admission records. Id. at 806. Furthermore, there was an employment
application and a life insurance policy indicating the couplesrelationship status as
married. This occurred while the woman was still officially married to another
man and yet the court still held that the totality of the evidence suggested a marital
relationship. In holding that public declaration was satisfied, the court reasoned
that the mans declaration of his relationship status on life insurance documents,
coupled with the womansuse of his last name on other documents and his
acquiescence to this use, showed the couples willingness to recognize each other as
husband and wife. Id.
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enough official documentation to establish such a pattern normally present in a
marital relationship. This argument has merit and will probably carry the day. Mr.
Moskowitz, as the party claiming the marriage relationship, bares the burden of
proving his assertion by clear and convincing evidence. Since there is already a
presumption against the existence of the elements of common law marriage, the
lack of corroborating documentation will greatly hinder the effectiveness of this
claim. Although there is official documentation to present as evidence of public
declaration it is not substantial enough to withstand careful scrutiny and will fail to
meet the standard of proof necessary to establish this element.
Conclusion
Michael Moskowitz can show that he and Daisey represented themselves to their
community as married, however, there is not enough official documentation to
demonstrate by clear and convincing evidence that public declaration existed in his
relationship with Daisey. Therefore Mr. Moskowitz will fail to establish a common
law marriage.
Review the information and notes on rule application. Compare yourrule application paragraphs to the sample paragraph.
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