LTRW Drafting Project
Drafting Project
By Jessica M. Brown
Professor Jonathan Bent
A common law marriage is the intent and agreement to be married, public declarations that the parties are wife and husband and continuous cohabitation. The cases that will be shown throughout this memo are ones that personally deal with common law marriages and how it affects the people themselves.
The evidence in the case of Al Ware and Cady Smith is a bit confusing. It needs to be cleaned up to actually show that they were living in the common marriage law. While it is all there; Al calling Cady his wife, the passports, fake drivers license, ordering the parts as Ms. Ware, going to exotic locales, and making payments on an ATV and plasma TV; it is not in order at all. They have talked about getting married and have lived together for a couple of years before trying to get married. The couple has broken up once, early on in the relationship, but since then has gotten back and lived together.
Cady Smith has her license and other things done in the name of Cady Ware though she still files tax returns and etc under Cady Smith. The common law marriage says that there has to be evidence on the part of the clients to show that they are ‘married’. Cady has evidence but they need to be brought together in a way that will make it easier to understand.
Al has spoken of Cady as his wife and has taken care of her finances in that he is on mostly all of them. Both people have not given up on each other or cheated on the other in the years they have been together. The couple met in 1998 but after a big breakup did not resume living together until the following year. They have bought and made payments on things together like above and gone to different places. The marriage almost took place but the couple found that they were broke once in Los Vegas and did not get married in 1999. They have driven across country and have been referred to by other couples as husband and wife. Cady has not gone to church in the past ten years but at least one person, Minister Sourpuss, considers the couple to be living in sin. Cady is the beneficiary of a life insurance policy on Al’s life and is called Ms Ware when buying parts for the auto parts store she works in.
The cases of Marriage of Martin, 681 N.W. 2d 612 and Marriage of Winegard, 278 N.W. 2d 505 uses the facts of marriage or waiting to be married. The clients and their accusers point out the facts on how long they were together and exactly why some say they were married and have proof, and others don’t.
In the case of Matter of Estate of Stodola, 519 N.W. 2d 97 the client was trying to prove that they were married to the deceased so that they could get the estate. Because they were recognized only as common marriage law it took a bit for them to show the evidence. The evidence itself needed to be clear, consistent, and convincing.
Conklin by Johnson-Conklin v MacMillan Oil Co, 557, N.W. 2d 102 is another case that deals with common law in Iowa. In this case the plaintiff, Kim Warner appealed the court about her ‘marriage’ to Robert Casady. The plaintiff shared mostly everything with her common law husband but some documents that marked him as single. While living together the plaintiff’s boyfriend was married and then a widower when his wife died in 2003. Both people claimed each other as husband and wife and mostly everything was done jointly. They had talked about marriage but never got married before the male died. The plaintiff could not prove to the Court of Appeals in Iowa that she and her partner were in a common law marriage because of mix reactions with people that they knew or met.
The facts in these cases were a bit different but also the same as our case. All have been called husband and wife, have their names on some policy and share a bank account, etc. The differences in these cases is that ours is based on criminals while the rest are mostly all good people. Cady and Al Ware have fake passports, driver’s license; have not filed any tax returns since 2000, etc. The clients in the other cases have filed tax returns together, have children, are an adopted parent to the child, and/or trying to get the estate of their deceased partner.
In the end I believe there is a valid common law marriage. It has been proven in cases that people can be together for a long time before actually getting married. While the cases you have sent me are ones that mostly turn out to be in the favor of the other party there are a few that are not. Going through the cases have brought up a lot of points that we need to make sure will get done. The evidence needs to be clear and all together; we need more written proof about Cady and Al, and make sure there is nothing else that can contradict what we will be trying to say.
Our witnesses need to write out there statements and have a written note that says they cannot take them back. We need to figure out exactly why Al has not done any tax returns and exactly why they have not gone through with the marriage yet. Once that is all taken care of the common law marriage should take care of Cady’s note. The court will hopefully throw it out and not have the written statement go against Mr. Ware.
Hopefully the common law marriage in Iowa works in our favor and proves that Al and Cady are married in the sight of Iowa law.
Any questions or concerns about what I wrote please let me know, thank you.
The Cases
Toom, 2005 WL 3116091
Marriage of Martin, 681 N.W.2d 612
Marriage of Winegrad, 278 N.W.2d 505
Matter of Estate of Stodola, 519 N.W.2d 97
Conklin by Johnson-Conklin v MacMillan Oil Co. 557 N.W.2d 102
WC 1,043