RULES Cont.

Question 1

When will a divorce settlement agreement be set aside?

Answer 1

A settlement agreement made during the divorce process is generally valid if voluntarily
made. However, a settlement agreement that resulted from fraud, overreaching, or duress may be set aside if it is found to be substantially unfair.

Question 2

Is a professional degree considered marital property?

Answer 2

No, most states hold that a professional degree or license is not property interest subject to equitable distribution.
Even if a degree is not considered divisible marital property, it may be considered in the division of other marital property, as well as an alimony award for the spouse who contributed to support of the family while the degree-earning spouse was in school.

Question 3

For alimony, a court may consider:

Answer 3

i) the parties’ respective financial resources and needs;
ii) contributions each has made to the marital relationship, financially or providing care within the home; and
iii) the duration of the marriage.
Some state statutes require or allow consideration of spousal misconduct. Some specifically require consideration of one spouse’s support for the other’s education or training and may mandate reimbursement for such contributions or may order rehabilitative alimony.

Question 4

Earmarks of bad faith in not issuing dividends

Answer 4

(1) intense hostility of the controlling faction against the minority;
(2) exclusion of the minority from employment by the corporation;
(3) high salaries, bonuses, or corporate loans made to the officers in control;
(4) the fact that the majority group may be subject to high personal income taxes if substantial dividends are paid; and
(5) the existence of a desire by the controlling directors to acquire the minority stock interests as cheaply as possible.

Question 5

Business Judgment Rule

Answer 5

The business judgment rule is a presumption that in making business decisions, the directors act on an informed basis, in good faith, and in the honest belief that the action being taken is in the best interests of the corporation.

Question 6

A non-expert witness may give opinion testimony if it is:

Answer 6

(1) rationally based on the perception of the witness;
(2) helpful to clear understanding of testimony, or to a determination of the fact in issue; and
(3) not based on scientific, technical, or other
specialized knowledge.

Question 7

Habit evidence

Answer 7

refers to a narrow range of highly probative traits that are automatic, invariable patterns of behavior.
Habit is a regular response to a given situation done without a high degree of forethought and
need not be corroborated.
They are characterized by the words “always” or “invariably.”

Question 8

waiver of a right in trust distribution

Answer 8

A trust beneficiary can effectively waive a right in the trust distribution. Under the Uniform Probate Code, revocation must be in writing and may be made at any time after the settlor’s death. In some states, revocation must be made within nine months of the decedent’s death.
The beneficiary is then treated as if she predeceased the settlor. Under common law, the beneficiary’s share goes to the other beneficiaries named in the trust. Under the UPC, the beneficiary’s share goes to her heir.

Question 9

A revocable trust with a settlor as beneficiary with the right to revoke

Answer 9

makes a settlor the owner and may relieve a trustee of liability if duty of care is questioned.

Question 10

Partnership Property

Answer 10

Property acquired after the formation of the partnership, on account of the partnership, and with partnership funds, is partnership property. It is not the property of any of the individual partners, unless contrary intent is demonstrated.

Question 11

Student religious groups

Answer 11

student religious organizations cannot be prohibited from using school facilities that are available to other student
groups because such prohibition would violate freedom of speech under the First Amendment.
Allowing student religious organizations to meet on school grounds does not violate the Establishment Clause.

Question 12

A fee simple determinable

Answer 12

A fee simple determinable estate terminates when a specified future event occurs and is usually described with wording such as “for so long as,” “while,” “until.” A determinable estate is created with one clause and the limitation included in that clause. A determinable estate includes the possibility of reverter, which need not be stated and can be implied. Reverts automatically.

Question 13

A fee simple subject to a condition subsequent

Answer 13

A fee simple subject to a condition subsequent is an estate that can end if the grantor or a third party
retakes the estate when a specified future event occurs. The event’s occurrence merely gives the grantor
the right to take the estate; it does not automatically terminate the estate. The estate is created in two
separate clauses with the condition in the second clause and wording such as “provided, however,”
“however if,” “but if,” or “in the event that.”

Question 14

Factors courts consider about procedural fairness of the premarital agreement include:

Answer 14

disclosure of net worth,
whether parties had independent counsel or knowingly and voluntarily waived,
timing of agreement,
bargaining power, and
level of financial and legal knowledge of parties.

Question 15

Substantively, a premarital agreement is unconscionable if:

Answer 15

There is a significant difference in the sophistication and resources so that the agreement is one-sided due to
inequitable bargaining power.
While the UPAA looks at unconscionability at the time the agreement was executed, some states look at unconscionability at the time of enforcement

Question 16

Separate property

Answer 16

In states that distinguish separate and marital property, property owned before marriage, acquired after the marriage dissolved or acquired by gift or inheritance during marriage is individual property belonging to the spouse owning or acquiring that property. Property acquired during the marriage is presumed to be marital property.

Question 17

Alimony Awards

Answer 17

The modern trend is to limit alimony grants to encourage spouses to become self-supporting in a reasonable time period. Alimony awards are based on economic need and fairness.
The UMDA allows alimony only when the court finds the receiving spouse doesn’t have enough assets to meet reasonable needs and is unable to support himself through employment or has a child whose circumstances make it appropriate that the spouse not be required to get employment outside the home.

Question 18

Factors considered in granting alimony generally include:

Answer 18

financial resources and needs, contributions of each spouse to the marital relationship, either financial or within the home, and the duration of the marriage.
The UPAA also does not favor denial of alimony when doing so would require one spouse to seek public assistance

Question 19

UCCJEA parental rights jurisdiction & custody

Answer 19

Pursuant to the UCCJEA, a child’s home state has exclusive jurisdiction over custody and parental rights
proceedings. A child’s home state is the state where the child has lived with a parent or guardian for at least six consecutive months before the commencement of the proceeding.
Where no home state exists, jurisdiction is proper in any state in which there is: (1) “significant connections” for the child and at least one parent; and (2) “substantial evidence” relating to the child’s custody.

Question 20

which state’s law governs the disposition of real and personal property

Answer 20

When a person dies, distribution of his personal property is governed by the laws of the state in which the decedent was domiciled.
Distribution of real property is governed by the laws of the state in which the property is located.

Question 21

Laws that prevent non-marital children from inheriting

Answer 21

The Supreme Court has held that a state cannot bar a non-marital child from inheriting where paternity was established during a father’s lifetime

Question 22

A durable health-care power of attorney

Answer 22

A durable health-care power of attorney empowers an agent to make health-care decisions for the principal in the event of the principal’s incapacity. Unless it specifies otherwise, this power of attorney is not limited to a particular duration or illness. The agent is required to make decisions that are, in the agent’s determination, in the best interest of the principal. The agent should make this determination based on his or her understanding and knowledge of the principal’s personal values.

Question 23

illusory or fraudulent transfer doctrines for trusts

Answer 23

The transfer of assets into a revocable trust can be construed as illusory, in that the settlor spouse retained the right to recapture the trust assets by exercising her power of revocation prior to death.
The surviving spouse could therefore reach the trust assets.

Question 24

A validly executed codicil…

Answer 24

cures any defects in the execution of the original will.

Question 25

Under the UPC, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money.

Answer 25

Such a list does not need to be in existence at the time of the execution of the will. To be admissible as evidence
of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty.

Question 26

The major categories of charitable purposes are:

Answer 26

(1) the relief of poverty; (2) the advancement of education; (3) the advancement of religion; (4) the promotion of health; (5) the performance of governmental and municipal purposes (such as maintenance of parks); and (6) other purposes beneficial to the community.

Question 27

An honorary trust

Answer 27

An honorary trust is one that does not qualify as a charitable trust, but lacks definite beneficiaries. Under the Uniform Trust Code, a trust without ascertainable beneficiaries but otherwise having a valid purpose can
be created, but may not be enforced for more than 21 years.
If this is a valid honorary trust, the court can preserve it for 21 years to carry out the purpose.

Question 28

Under the UPC, where the decedent leaves no surviving spouse, descendants, or parents, the decedent’s estate will pass to…

Answer 28

the descendants of the decedent’s parents
In some instances, the courts will look to priority of distribution by looking at the degree of consanguinity, but this is the minority rule.

Question 29

A codicil

Answer 29

A codicil is an instrument that is executed subsequent to a will by which the will is altered, explained, added to, subtracted from, or confirmed by way of republication.

Question 30

Revocation of a will under the UPC

Answer 30

Under the UPC, words written on another document cannot serve as a revocation by cancellation, but words written on the will, whether they touch the words on the will or not, can be a revocation by cancellation.

Question 31

doctrine of dependent relative revocation

Answer 31

If a testator revokes an old will with the intention that a newly executed will shall replace it, and the new will
is not made or is invalid, some jurisdictions will admit the revoked will to probate on the theory that the testator did not intend the revocation to occur unless the new will’s provisions should take effect.
**The doctrine is not favored and is rarely applied. Courts are more likely to apply the doctrine when the identity of the bequest that was revoked is similar to the identity of the bequest in the subsequent invalid will. **

Question 32

Heirs

Answer 32

means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

Question 33

Issue

Answer 33

includes all lineal descendants from an ancestor in any degree, e.g. children, grandchildren, etc.

Question 34

When a devise fails under common law and under the UPC

Answer 34

Under the common law, if the devise failed, the invalid part would pass through intestate distribution.
Under the UPC, a devise, other than a residuary devise, that fails for any reason becomes part of the residue.

Question 35

when, if ever, the property division provisions of a divorce decree may be modified

Answer 35

A property-division award, whether it results from a judicial decision or a divorce settlement agreement, may not be modified after a divorce decree has been entered.
Because the past can be ascertained, courts are not empowered to reconsider that evaluation and modify a property-division award once it has been embodied in a final judgment of divorce.

Question 36

when, if ever, the spousal support provisions of a divorce decree may be modified

Answer 36

In all states, a spousal-support award may be modified based on a change in a party’s circumstances. Most courts require that such a change be substantial. More important, a change in circumstances that is anticipated may not serve as a basis for modification of a support order. A court may take into account legal obligations to a new spouse and/or children in determining whether there has been a change in circumstances that warrants modification of a support award. In most states, a stepparent relationship creates no legal support obligations.

Question 37

family privacy doctrine

Answer 37

a family’s home is subject to privacy, and its internal affairs generally cannot be regulated or interfered with by the government or the courts

Question 38

Parent refusing medical treatment for their child

Answer 38

Statutes in all states require the consent of parents to medical care for their children except in emergency situations. Parents who refuse to allow “necessary” medical procedures to save the life of their child may be found guilty of neglect, and a guardian may be appointed to make medical decisions.

Question 39

best interest of the child standard

Answer 39

The best interest of the child is determined by an examination of all relevant factors that would contribute to the well-being and welfare of the child.
All relevant factors, including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school,
and community; and
(5) the mental and physical health of all individuals involved.

Question 40

Uniform Interstate Family Support Act subject matter jurisdiction

Answer 40

Under this Act, the state that enters the original order will retain jurisdiction for modification, provided the child or one of the parties continues to live in the state. All the parties may also consent to another forum.

Question 41

Visitation of non-parents

Answer 41

Parents are presumed to act in the best interest of their children, and have the right to determine whether or not to allow visitation with non-parents. Courts must give special weight to a parent’s objection to visitation with a non-parent before granting visitation against the parent’s
wishes.

Question 42

Courts generally have found that presenting a premartial agreement to the spouse on the eve of the wedding, and threatening to call it off if the agreement is not signed, does not constitute sufficient duress to
invalidate the agreement for lack of voluntariness.

Answer 42

the expense or embarrassment of cancelling the wedding should amount to duress.

Question 43

A separate asset that increases in value during the marriage

Answer 43

will be separate if the increase was due to market forces, not the labor of either spouse. If the value of a separate asset is increased through marital funds or significant labor of one or both spouses, then the portion attributable to such labor is marital property.

Question 44

custody of minor children involving a parent and a non-parent

Answer 44

There is a presumption that it is in the best interests of the child to be in the custody of one of the parents.
If both parents are living, competent, and have not been found to be unfit, they are entitled to custody of the minor.

Question 45

Fault-Based Divorce grounds

Answer 45

desertion, adultery, impotence, cruelty, imprisonment, habitual intoxication, or drug addiction.

Question 46

subject-matter jurisdiction to enforce child support

Answer 46

As long as the requirements for personal jurisdiction are met, the UIFSA does not preclude a state from issuing a support order when another state is the child’s home state.
A state court may exercise jurisdiction to establish a support order after a pleading is filed in another state only if this state is the home state of the child or jurisdiction in the other state has been timely challenged.

Question 47

An easement implied from prior use

arises in favor of a grantee when

Answer 47

(1) two parcels of land are in common ownership; (2) one of the parcels is conveyed to a grantee; (3) the parcel conveyed had been receiving a benefit from the parcel retained prior to the conveyance to the grantee, i.e., there was a use over the retained parcel in favor of the conveyed parcel which could have been the subject of an express easement appurtenant; (4) the usage is reasonably necessary or convenient; and (5) the usage is apparent.

Question 48

priority over future-advances mortgage that are mandatory vs optional

Answer 48

If payments under a future advances mortgage are obligatory, then the junior lender’s lien is junior both to amounts loaned to the debtor before the junior lien was recorded and to amounts loaned after the junior lien is recorded.
If the payments under a future-advances mortgage are optional, the junior lender has a priority over amounts transferred to the debtor by the senior lender after the junior lender transfers funds to the debtor and records its mortgage.

Question 49

For a constructive eviction to exist, all of the following must occur:

Answer 49

(1) the landlord must withhold something essential to the full enjoyment of the property that is included within the terms of the lease or is required by statute;
(2) the landlord’s act or failure to act must substantially and permanently interfere with the tenant’s use and
enjoyment of the premises; and
(3) the tenant must move out.

Question 50

When a tenant surrenders his lease, the landlord may choose to accept the surrender or enforce the terms of the lease.

Answer 50

If the landlord accepts the surrender, the tenant is no longer bound by the lease. Acceptance of the surrender can be either express, or implied by operation of law.

Question 51

what damages are available to the landlord, given that the tenant abandoned the lease.

Answer 51

Under the traditional view, if the tenant abandons the premises, the landlord has no duty to mitigate by attempting to re-let the premises.
However, under the modern view, the landlord does have a duty to mitigate and, if mitigation is required, the burden of proof is placed on the landlord to show that he attempted to mitigate his losses.
In terms of future rent, many jurisdictions do not allow the landlord to recover any. In those jurisdictions that do allow for recovery of future rents, the landlord may
recover the value of the outstanding rent due under the lease minus the fair rental value of the property.

Question 52

implied warranty of quality in the sale of new or remodeled homes

Answer 52

The warranty covers significant latent defects caused by the defendant’s poor workmanship. The defects must be discovered within a “reasonable time” of construction or remodeling. The jurisdictions are split on whether the implied warranty of quality extends to subsequent purchasers. The jurisdictions are also split on whether economic loss may be recovered for breach of the implied warranty of quality.

Question 53

Present Covenants in a general warranty deed

Answer 53

(1) Seisin: The grantor promises he or she owns the property
(2) Right to Convey: The grantor promises he or she has the power to convey the property
(3) Covenant against Encumbrances: The grantor promises there are no encumbrances (visible or invisible) on the property

Question 54

An adverse possessor who acquires property burdened by an easement takes the property subject to the easement unless

Answer 54

the adverse possessor can show that he adversely possessed the easement as well.

Question 55

the Fair Housing Act of 1968

Answer 55

a person cannot refuse to sell or rent a dwelling, or discriminate in sales or rental terms, to any person based on race, color, religion, sex, handicap, familial status, or national origin.
The anti-discrimination rule does not apply if the owner occupies one of the units in a multiple unit dwelling containing no more than four units occupied by persons living independently of each other.

Question 56

Advertising and the Fair Housing Act of 1968

Answer 56

The Fair Housing Act of 1968 prohibits a person from advertising the sale or rental of a dwelling indicating discrimination. This provision applies not only to a landlord who places an advertisement but also to the
publisher of the newspaper in which the advertisement is placed

Question 57

Do recording statutes apply to implied easements?

Answer 57

courts are split on whether a recording statute applies to an implied easement.
They do apply to express easements.

Question 58

Supplemental jurisdiction test

Answer 58

Claims that form part of the “same case or controversy” under Article III “derive from a common nucleus of operative fact”

Question 59

Leave to amend

Answer 59

Under Rule 15 of the Federal Rules of Civil Procedure, a court must give a party leave to amend its pleadings where justice requires. The court, in determining whether leave should be given, must consider: (1) the length and reason for delay; and (2) prejudice to the opposing party. Typically, a court will deny leave to amend when there was undue delay, bad faith, futility, or undue prejudice.

Question 60

elements of summary judgment

Answer 60

An issue is genuine if a juror could reasonably conclude
the fact in favor of the non-moving party. A fact is material if it is necessary to support one of the elements of a claim. When determining a motion for summary judgment, the court will view facts in the light most favorable to the non-moving party.

Question 61

service of process on a corporation

Answer 61

If the defendant is a corporation, a plaintiff can properly
serve process by delivering a copy of the summons and the complaint to 1) an officer; 2) a managing agent or general agent; or 3) any other agent authorized by law to receive service of process. In addition, the Rule allows a plaintiff to serve process upon a corporation by following state law for serving a summons.

Question 62

whether a defendant can join a third-party defendant to a case

Answer 62

a defendant may proceed against a non-party who may be liable for all or part of the plaintiff’s claim against the defendant.
A defendant may file a third-party complaint any time within 14 days of filing her answer; after that, third-party complaints may be filed only with leave of court.

Question 63

Courts may decline to exercise supplemental jurisdiction where

Answer 63

1) the claim includes novel or complex issues of state law; 2) state-law claims predominate over the federal claim; or
3) the district court’s dismissal of all the claims over which it had original jurisdiction.

Question 64

service of process on a person

Answer 64

If the defendant is a natural person, process can be served by personally delivering the process to the defendant herself, wherever she may be, serving her registered agent, or leaving process at her last and usual place of abode with a person of suitable age and discretion who resides there.

Question 65

choice of law provisions

Answer 65

Such a stipulation is deemed valid and enforceable unless the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice; or it is contrary to a fundamental policy of the forum

Question 66

nature of sanction

Answer 66

The court has significant discretion in imposing sanctions. The nature of the sanction must be limited to what would be sufficient to deter repetition of the conduct or comparable conduct by others.
A court may impose sanctions on any attorney, law firm, or party that violated Rule 11 or is responsible for the violation.

Question 67

Multiple defendants or plaintiffs may be joined in one action if:

Answer 67

(1) the joined defendants face liability that arises out of the same transaction or occurrence; and (2) any question of law or fact is common to the joined parties.

Question 68

Ratification allows a principal to grant retroactive authority for his agent’s earlier unauthorized actions.

Answer 68

A principal ratifies an act by either of the following: by manifesting assent that the act shall affect the principal’s legal relations, or through conduct that is justifiable only on the assumption that the principal so consents.

An undisclosed principal, under the Second Restatement, cannot ratify as a matter of law. However, a principal could be liable by ratification given under the Third Restatement.

Question 69

If the employer has a right to control the conduct of the agent during performance of the service, the agent is an employee. If not, the employee is an independent contractor. Factors to consider in determining whether a right to control exits are:

Answer 69

1) whether the agent is paid by the job or by the hour;
2) the duration of the relationship;
3) who supplies the tools required for the agent’s work;
4) the skill required in the agent’s occupation; and
5) whether the work is part of the principal’s regular business.

Question 70

In order to be held criminally liable as an accomplice, the defendant must:

Answer 70

(1) encourage or assist the principal in the commission of the crime; and
(2) act with the intent that the principal commit the offense charged.

Question 71

Custodial interrogation

Answer 71

For Miranda purposes, a person is in custody when a reasonable person in similar circumstances would not feel free to leave. An interrogation is either express questioning or its functional equivalent by the police.

Question 72

immediate threat posed to public safety miranda exception

Answer 72

The right to receive Miranda warnings may, in some cases, be outweighed by the immediate threat posed to public safety. Focused and limited questions reasonably prompted by an immediate concern for public safety are permissible even in the absence of a warning.

Question 73

Fitness to stand trial

Answer 73

A defendant must be able to understand the nature and
consequences of the proceedings against him and be able to assist properly in his defense. Assisting in his defense requires that a defendant be able to make decisions, including whether to go to trial or plead guilty. If the court finds this by a preponderance of the evidence then he is not fit to stand trial.