Bar Exam Review

Question 1

Marriage Requirements

Answer 1

Capacity
Ceremony
Marriage License

Question 2

What’s Capacity?

Answer 2

Consent
Minimum Age
Bigamy
Incest
Non-Intoxication

Question 3

Void Marriage

Answer 3

Invalid from inception; Marriage offends a strong public policy
Ex: Fraudulent inducement to marry

Question 4

Voidable Marriage

Answer 4

Valid until a court declares it invalid; State (3rd Party) may void marriage if it offends a lesser public policy
Additionally, a spouse may ratify the marriage by continuing to cohabitate with spouse after innocent party learns of the defect/impediment

Question 5

FRAUDULENT MARRIAGE

Answer 5

A marriage is voidable for fraud if a
party makes a material
misrepresentation that affects the
essentials of the marriage (e.g.,
concealing impotency, concealing a
pregnancy by another, lying about
religious beliefs).

Question 6

Other Impediments to Marriage

Answer 6

Mental Capacity (must not know at time of marriage for it to be voidable)
Fraud
Duress

Question 7

Common Law Marriage

Answer 7

• Capacity
• Present agreement
• Cohabitation
• Holding out as a husband & wife (implied or explicit)
  ALL elements must be met in a jurisdiction that recognizes CLM

Question 8

Common Law Marriage Rule of Lex Loci

Answer 8

A marriage valid in the state where the ceremony was performed is valid anywhere.

Question 9

PREMARITAL CONTRACTS

Answer 9

Most states will enforce a premarital agreement as a valid contract if it is:
1. In writing and signed by both parties;
2. Executed after full disclosure of the property and financial obligations of
both parties; AND
3. Voluntary - courts will consider the following factors to determine
whether an agreement was voluntary:
a. The presence of independent legal counsel;
b. The length of time between the agreement and the marriage;
c. The sophistication of the parties; AND
d. The presence of other pressing reasons to proceed with the marriage
(e.g., a pregnancy).

Question 10

Putative Marriage

Answer 10

Protects a spouse who has a good faith belief in the validity of the marriage; Despite existence of an impediment

Question 11

Types of Fault-Based Divorce

Answer 11

Adultery
Cruelty (physical or mental)
Abandonment (actual or constructive) *typically requires 1 year
ALL forms require proof

Question 12

Types of No-Fault Divorce

Answer 12

Irreconcilable Differences -
discord or conflict that destroys the legitimate ends of marriage, and there is no reasonable expectation of reconciliation

Living Separate - at least 3 years

Question 13

Defenses to Divorce

Answer 13

Recrimination (both at fault)
Condonation (forgivness)
Adultery (unclean hands)
Collusion (both parties agreeing to fraud the court)

Question 14

In Rem Divorce

Answer 14

an adjudication of status not property
Even if there is no personal jurisdiction over respondent, court may grant divorce; may NOT grant child support or property division

Question 15

Basics of Spousal Support

Answer 15

essentially a settlement agreement
factors considered: financial resources of the spouse seeking support, time necessary to get employment, quality of life during the marriage, duration of marriage, etc…
Court must approve the final agreement

Question 16

Child Support & Duration

Answer 16

Both parents are responsible for the support of their marital children
 Generally until Child reaches age of majority or is emancipated; longer if the child is disabled

Question 17

Physical Custody

Answer 17

where the children reside, day to day decisions

Question 17

Legal Custody

Answer 17

Major health, educational, decisions

Question 18

CHILD CUSTODY IN PREMARITAL

CONTRACTS

Answer 18

Most courts decide custody
according to the best interests of
the child at the time of the custody
hearing, regardless of any premarital
agreements.

Question 19

CHILD SUPPORT IN PREMARITAL

CONTRACTS

Answer 19

Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.

Question 20

SPOUSAL SUPPORT IN
PREMARITAL CONTRACTS

Answer 20

Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy. In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy. Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support.

Question 21

SPOUSAL SUPPORT ELIGIBILITY

Answer 21

Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:

1. Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
2. Is the custodian of a child such that it would be inappropriate for him to work.

Question 22

ANNULMENT

Answer 22

is a judicial declaration that a marriage never existed and was invalid from when the parties entered into it. A marriage can be annulled if it is void or voidable. Common grounds for an annulment include:

1. Lack of capacity to consent at the time of the marriage;
2. Lack of capacity to physically consummate the marriage by
   sexual intercourse;
3. Underage minors without parental consent or judicial
   approval; AND
4. Marriages prohibited by law.

Question 23

PROPERTY DIVISION AT DIVORCE

Answer 23

At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the
community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:

1. Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital
   property between the spouses.

Question 24

CATEGORIZATION OF PROPERTY
AS SEPARATE OR MARITAL

Answer 24

Generally, marital property includes all property acquired during the marriage that is not separate property. Separate property
includes:

1. All property acquired by either spouse before the marriage;
2. All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
3. All property either spouse acquires with the proceeds of the spouse’s separate property; AND
4. All passive appreciation of separate property.

Question 24

PROPERTY DIVISION AT DIVORCE

Answer 24

At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the
community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:

1. Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital
   property between the spouses.