Top MEE Rules

Question 1

Bigamous marriage (saving doctrines) (5.6%)

Answer 1

NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time). However, there are two marriage saving doctrines that apply to bigamous marriages:

(1) Removal of Impediment. Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.
(2) Presumption of Validity. Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.

Question 2

Common law marriage (9.3%)

Answer 2

Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:

(1) Cohabitated (i.e., lived together) for the statutory period;
(2) Held themselves out as married; AND
(3) Intended to be married; AND
(4) Had the mental and legal capacity to marry.

Most states will recognize a common law marriage if it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.

Question 3

Premarital contracts (when valid) (13%)

Answer 3

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 (including income, assets, and debts);
(3) Fair and reasonable; AND
(a) The court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party to be charged had independent representation.
(b) The courts will also consider the fairness of the terms themselves.
(c) Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will also evaluate it at the time of enforcement.
(d) The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.
(3) Voluntary. Courts will consider the following factors to determine whether an agreement was voluntary:
(a) The presence of independent legal counsel (or opportunity to be represented by independent 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 4

Premarital contracts (when unenforceable; conflict of laws for determining validity) (13%)

Answer 4

Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:

(1) The agreement was involuntary (due to fraud, duress, or coercion); OR
(2) All of the following elements:
(i) The agreement was unconscionable when it was executed,
(ii) s/he did not receive or waive fair and reasonable disclosure, AND
(iii) s/he did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations (i.e. lack of reasonable knowledge or disclosure).

Conflict of laws: When determining the validity of a premarital agreement, states will apply the law of either:

o The state in which the agreement was executed; or

o The state with the most significant relationship to the parties and transaction.

Question 5

Child Custody and Support in Premarital Contracts (13%)

Answer 5

a) Child Custody. Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
b) Child Support. 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 6

Grounds for divorce (5.6%)

Answer 6

a) Traditionally, divorce was only permitted if one party was determined to be at fault (e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony convictions).
b) Today, some states have completely abolished fault as a ground for divorce; however, every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are:
(1) A minimum duration of separation (usually 6 months to 1 year); AND/OR
(2) Irreconcilable differences.
(3) NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other.

Question 7

Jurisdiction in marital actions (state vs. federal; annulment; divisible divorce) (13%)

Answer 7

a) Jurisdiction over marital actions is vested solely in the state courts (federal courts do not have subject matter jurisdiction over domestic relation matters).
b) Annulment. Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.
c) Divisible (Ex Parte) Divorce. Under the concept of divisible divorce, a distinction is made between the marriage and the marital property. A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. A court with personal jurisdiction over only one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse.

Exam Tip: Look for situations when spouses now live in separate states, and a spouse who has met a residency requirement in one state wants a divorce or support from the other spouse. These situations often trigger this issue.

Question 8

Recognition in other states (divorce; common-law marriage) (13%)

Answer 8

a) Divorce. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Generally, a divorce is valid and must be recognized by other states if the petitioning party:
(1) Was domiciled in the state that granted the divorce (regardless of whether that court had personal jurisdiction over the other spouse); AND
(2) Provided adequate notice of the proceeding to the other spouse.
b) Common-Law Marriage. Most states will recognize a common law marriage if it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.

Question 9

Grounds for divorce (5.6%)

Answer 9

a) Traditionally, divorce was only permitted if one party was determined to be at fault (e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony convictions).
b) Today, some states have completely abolished fault as a ground for divorce; however, every state has adopted a form of unilateral no-fault divorce, requiring neither fault nor consent of the other spouse. Common grounds for a no-fault divorce are:
(1) A minimum duration of separation (usually 6 months to 1 year, can be unilateral); AND/OR
(2) Irreconcilable differences (i.e., the marriage is irretrievably broken with no prospect of reconciliation)

NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other.

Themis: No attempt at reconciliation required(?)

Question 10

Property division at divorce (overview, modification) (25.9%)

Answer 10

Approaches. At divorce, courts divide marital property between spouses pursuant to state law. There are two approaches:

(1) Community Property (minority). Generally requires an equal division of the marital property.
(2) Equitable Distribution (majority). Requires an equitable, or fair distribution of all marital property, not necessarily an equal 50/50 division, taking into consideration all of the circumstances between the parties.

Process. 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.

Modification. Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination), even if there is a change in the parties’ circumstances, UNLESS exceptional circumstances exist (e.g., fraud).

Question 11

Categorization of property at divorce (22.2%)

Answer 11

At divorce, under either approach, the court must categorize all property owned by the spouses as either separate property of each spouse or marital property owned jointly by both spouses. Generally, a court CANNOT divide separate property at divorce.

(1) Separate Property. Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s separate property; AND
(d) All passive appreciation of separate property (appreciation in value due to the passage of time rather than the efforts of either spouse).
(2) Marital Property. Marital property generally includes all property acquired during marriage (regardless of who holds title) that is NOT separate property as above (e.g. each spouse’s wages).
(a) Professional Degrees and Licenses. In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license, e.g. educational and living expenses.
(b) Future retirement/pension benefits. If a spouse works during the marriage and creates or earns profits or benefits that will not be received until after divorce, the profits will be considered MP.
(c) Personal injury claim proceeds. There are two approaches to personal injury awards, and you should discuss both:

Approach 1: If the cause of action accrues during marriage, even if the spouses are separated, all proceeds are treated as MP.

Approach 2: Damages are divided between MP and SP by type.

(a) Compensatory damages (e.g., pain, suffering, disability) are SP of the injured spouse
(b) Consortium loss damages are SP of the non-injured spouse
(c) Lost wages, lost earning capacity and medical expenses are MP
(3) Separate –> Marital. Active appreciation (appreciation in value due to the efforts of either spouse) of separate property is usually categorized as marital property. SP can be transformed into MP if marital funds or efforts by owner-spouse enhance its value/or build equity during marriage.

Question 12

Distribution of property at divorce, after categorization (22.2%)

Answer 12

Distribution. Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:

(1) The income, property, and liabilities of each party;
(2) The duration of the marriage;
(3) The obligations for support arising out of a prior marriage;
(4) The lifestyle each spouse is accustomed to;
(5) The contributions made by each spouse toward the accumulation of marital property (including contributions as a homemaker).
(6) NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT a factor considered in the division of marital property.

Question 13

Spousal support (eligibility, determination) (5.6%)

Answer 13

At divorce, spousal support (sometimes called maintenance or alimony) is the obligation of one party to provide the other with financial support. It is generally awarded if a spouse’s separate property is insufficient for their maintenance.

Eligibility. 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.

Award Determination. Once the court determines that a spouse is eligible for support, the court will then determine the appropriate amount to award. Courts are afforded significant discretion in making this determination and usually examine a spouse’s needs under the totality of the circumstances. General factors include:

(1) The financial resources of both parties;
(2) The time necessary for the spouse seeking support to obtain an appropriate job (includes time needed for education or training);
(3) The duration of the marriage;
(4) The standard of living established during the marriage;
(5) The age and physical/emotional condition of both parties;
(6) The ability of the spouse paying support to meet her own needs while meeting those of the spouse seeking support.
(7) Parties’ contributions to the marriage.
(8) The marital “fault” of either spouse, e.g., adultery (ONLY IN SOME STATES).

Question 14

Types of spousal support (5.6%)

Answer 14

(1) Permanent alimony is an award for the remainder of the dependent spouse’s life (generally only appropriate after long marriages).
(2) Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate).
(3) Rehabilitative support (recently tested) is for a limited period of time, such as until the spouse receives education or employment.
(4) Reimbursement alimony (recently tested) compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future (e.g. one spouse worked two jobs and didn’t pursue further education so that the other spouse could earn an advanced degree).

Question 15

Modification of spousal support (5.6%)

Answer 15

In most states, a spousal support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. The party seeking modification has the burden of establishing this change.

Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Anticipated changes. Some courts will NOT permit a modification of spousal support if the change in circumstances was anticipated.

Voluntary changes. A party’s voluntary reduction in income will generally NOT reduce support payments.

New obligations for paying spouse. A court may consider new obligations that arise for the spouse who is paying support, e.g. the paying spouse has children from a new marriage and has less ability to pay.

Receiving spouse remarries. In most jurisdictions, if the receiving spouse remarries, then spousal support may be terminated.

Exam Tip: When discussing a party’s action for modification of spousal support, analyze the facts carefully and discuss both parties’ arguments regarding the significant change in circumstances.

Question 16

Child support (general obligation, duration) (5.6%)

Answer 16

Parents have an absolute obligation to support their minor children. Parents cannot bargain away child-support payments and cannot agree to any release or compromise that would negatively affect the child’s welfare.

Education Expenses. Some states require support for the child’s continuing education. In such states, a child may lose their support if the child fails to follow the obligor parent’s reasonable instructions.

Duration. Child support obligations generally last until the child reaches the age of majority or is otherwise emancipated (e.g., becomes married, enters the military, etc.).

Question 17

Modification of child support (9.3%)

Answer 17

a) In most states, a child support order can only be modified when there is a substantial change in circumstances of either party (or regarding the child’s needs) making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.

The party seeking the modification of child support bears the burden of showing a substantial change in circumstances. Circumstances may include a parent’s change in occupation, remarriage of a parent, or an increase or involuntary decrease in income by either parent.

b) Some courts will NOT permit a modification of child support if the change in circumstances was anticipated or voluntary. If the obligor voluntarily made this change, courts usually require that the obligor prove the change occurred in good faith, rather than to punish the obligee or deprive the child of support (e.g., voluntarily quitting a job to reduce income in order to pay less child support is usually not allowed).
c) Under the UIFSA, the state that originally issued the child support order has continuing exclusive jurisdiction to modify the order, UNLESS:
(1) neither of the parents (obligee and obligor), nor the child, continue to reside in the state; OR
(2) the parties expressly agree to permit another state to exercise jurisdiction.
d) Federal law:
(1) Bars courts from retroactively modifying child support orders; AND
(2) Requires states to give full faith and credit to child support awards from other states. (Under the UIFSA, the receiving parent may register a child support order from one state in another non-issuing state; the non-issuing state can then enforce the support order.)

Question 18

Child custody (types)

Answer 18

Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. Either or both of these types of custody can be shared under a joint custody arrangement.

(a) Legal custody is the right of a parent to make major decisions regarding the child.
(b) Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.
(c) Joint custody generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions. Generally, a court must determine that joint custody is in the child’s best interests in order to award the parents joint custody. Thus, joint custody is usually only an option for cooperative parents, as it may be harmful to the child if the parents are hostile toward each other.

Question 19

Best interests standard (16.7%)

Answer 19

Generally, courts determine child custody based on the best interests of the child. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes significant harm to the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests, including:

(1) The needs of the child for a meaningful relationship with both parents;
(2) The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests;
(4) The child’s adjustment to the child’s home, school, and community;
(5) The mental and physical health of all involved individuals;
(6) The intention of either parent to relocate the principal residence of the child;
(7) The wishes of the child’s parents as to custody; AND
(8) The wishes of the child as to the child’s custodian. (In some states, if a child has reached sufficient age, the court must award custody as the child wishes. However, most courts consider a child’s wishes as a factor, and, as the age and maturity of the child increases, the wishes are given greater weight. The court will look at the child’s reasoning behind her preference.)

Factors not used. Courts generally will not use race or religion in determining custody. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes significant harm to the child.

Third-party rights. When determining child custody between a parent and a third party (even including a grandparent or stepparent), it is presumed that custody with the parent is in the best interest of the child.

Question 20

Parental and third-party visitation rights (7.4%)

Answer 20

Parental Visitation. Parents have a constitutional right to have contact with their children. When one parent is granted custody of a child, the other parent is usually always entitled to (reasonable) visitation rights UNLESS the court determines that visitation would seriously endanger the child’s wellbeing (e.g., the parent has been convicted of violent crimes).

Unwed biological fathers (recently tested): An unwed father has a substantive due process right to have contact with his child, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support).

Third-Party Visitation. In a minority of states, courts may order visitation for a nonparent if:

(1) The nonparent has a substantial relationship with the child; AND
(2) The visitation is in the child’s best interests.

In order to be constitutional, great weight must be given to the parent’s wishes in regard to the nonparent when determining the best interests of the child.

Question 21

Modification of child custody (9.3%)

Answer 21

In order to modify a child custody order, the parent seeking modification must show that:

(1) Circumstances have substantially changed; AND
(2) The modification would be in the child’s best interests.

The state that issued the child custody order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of any party involved.

Question 22

Unmarried cohabitants: economic sharing (5.6%)

Answer 22

a) Express Contracts. In most states, an express agreement (written or oral) between unmarried cohabitants to share property or otherwise engage in forms of economic sharing is enforceable, so long as the economic sharing is NOT intended as payment for sexual services. However, some states refuse to recognize such contracts between unmarried cohabitants as against public policy.
b) Implied-in-Fact Contracts. Some states also allow unmarried cohabitants to seek a remedy based on an implied-in-fact contract theory. An implied-in-fact contract is formed by the conduct of the parties rather than express statements (e.g., commingling funds).
c) Equitable Remedies. Some states also allow unmarried cohabitants to seek equitable remedies based on the following theories:
(1) Resulting Trust. To make a claim to property titled in another’s name, the party seeking the resulting trust must have paid money to acquire the property with the intent to retain an ownership interest, rather than making a gift.
(2) Constructive Trust. A constructive trust is imposed to prevent a party from being unjustly enriched by obtaining title to property through wrongful conduct.
(3) Quantum Meruit. A quantum meruit claim requires another to pay the fair market value of services rendered to avoid unjust enrichment.

Question 23

Establishing paternity (establishment of father-child relationship; presumption of fatherhood; equitable estoppel) (5.6%)

Answer 23

a) Paternity actions typically arise when a man wishes to avoid child support obligations by denying paternity of the child. A mother or government agency may bring a paternity action to establish the father’s paternity. Once paternity is established, the law imposes all rights, privileges, duties, and obligations on the father.
b) Under the Uniform Parentage Act (UPA), the father-child relationship is established between a man and a child by:
(1) An effective acknowledgement of paternity by the man UNLESS the acknowledgement has been rescinded or successfully challenged;
(2) A valid adoption of the child by the man; OR
(3) An adjudication of the man’s paternity.
c) Under the UPA, a man is presumed to be the father of the child if:
(1) He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated;
(2) Before the child’s birth, he and the child’s mother attempted to marry in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR
(3) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.

NOTE. A presumption of paternity under the UPA may only be rebutted by clear and convincing evidence. Generally, there is a very high burden on challenging paternity because society favors the family relationship. Some courts even have the authority to exclude valid evidence that would rebut the presumption if rebutting the presumption would be contrary to the child’s best interests.

d) Equitable Estoppel. Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if:
(1) He has held himself out as the father; AND
(2) Paid support.

Question 24

Legitimation (5.6%)

Answer 24

Legitimation establishes a biological father’s rights concerning his child born out of wedlock. Upon valid legitimation, the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.

Legitimation may occur in two ways:

a) Legitimation by Petition. The father may file a petition seeking to legitimate his child. Generally, the father must show that he has:
(1) Assumed parental responsibilities; AND
(2) Established a substantial parent-child relationship.
b) Legitimation by Marriage. The marriage of the mother and biological father renders the nonmarital child legitimate so long as the father recognizes the child as his child.

Question 25

Right to control child’s upbringing (5.6%)

Answer 25

Parents have a fundamental right to direct their child’s upbringing, which includes a right to control their child’s religious education. Generally, courts will not interfere with parental decisions regarding their child’s upbringing and education UNLESS the child’s wellbeing is endangered.

Question 26

Adoption (including visitation) (5.6%)

Answer 26

Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests.

Question 27

Parental consent to adoption (and challenge/revocation) (5.6%)

Answer 27

a) Generally, the consent of BOTH parents is required to place a child up for adoption. However, if the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility. Moreover, an unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.
b) Challenge to Validity of Consent. A biological parent may challenge the validity of his/her consent to an adoption on the ground that his/her consent:
(1) Was procured by fraud or duress (mere stress is insufficient, the duress must be extreme); OR
(2) Failed to comply with statutory formalities. (Some states require two witnesses to consent to an adoption. Most states declare pre-birth adoptions invalid, e.g., a mother cannot give consent for an adoption until 72 hours after birth in some states.)
c) Revocation of Valid Consent. Generally, there are three different statutory approaches to a biological parent’s revocation of valid consent to an adoption:
(1) Consent is revocable until the final adoption decree is entered with the court;
(2) Consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; OR
(3) Absent fraud or duress, consent is NOT revocable.

Question 28

Child support (amounts) (5.6%)

Answer 28

Most jurisdictions have adopted an income-shares model, which uses the combined net income of both parents to determine the child support amount.

Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:

(1) Consider the income of the non-custodial parent;
(2) Provide for the child’s healthcare needs; AND
(3) Be based on specifically descriptive numeric criteria (i.e., a formula).

Rebuttable Presumption/Other Factors. In all states, there is a rebuttable presumption that the amount of support produced by the state’s formula is proper. If the court decides to deviate from that amount, the court will consider other factors in determining the amount and set forth specific findings explaining and supporting the deviation. Other factors may include the best interests of the child, the child’s age, special needs, the assets of both parties, and the standard of living during marriage.

Question 29

Adoption: rights of unwed father

Answer 29

Consent. If the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility.

Notice. An unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child. On the other hand, some jurisdictions have created adoption/putative father registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption.

Waiver. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.