Done Mermelstein Jared Submission Attachment %281%29.Jared

Embed Size (px)

Citation preview

  • 8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared

    1/5

    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

    Comment [jm1]: Rule: Public Dec

    Comment [jm2]: Synthesized Rul

  • 8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared

    2/5

    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

    Comment [TMc4]: cite

    Comment [TMc5]: reverse the sta

    and then move it up to the thesis p

    Comment [TMc6]: consider takin

    moving it to thesis paragraph

    Comment [jm7]: Rule Applsocia

    convention

    Comment [TMc8]: As what in Win

    Look at the spelling of that case.

    Comment [jm9]: Mini-conclusion

  • 8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared

    3/5

    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.

    Comment [jm10]: Rule Expl offi

    Comment [TMc11]: cite

  • 8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared

    4/5

  • 8/12/2019 Done Mermelstein Jared Submission Attachment %281%29.Jared

    5/5

    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.

    Comment [jm13]: Mini-conclusio