Bar Review includes family law, as it is tested on the essay portion of the Bar Exam. This applies whether you are taking the UBE (Uniform Bar Exam), or a state specific Bar Exam.
However, keep in mind that if you are taking a state-specific exam then you will be tested on the family laws of your particular state. Whereas, for the UBE, you will be tested differently.
The NCBE instructions for the UBE include the following quote. “Examinees testing in UBE jurisdictions must answer according to generally accepted fundamental legal principles rather than local case or statutory law.” There is a comprehensive outline of MEE testable subjects, including family law provided by the NCBE. In this article, we’ll be taking a brief look at what is important to know, from the UBE perspective.
The best way to study for this portion of the essay exam is the begin with memorization of a high quality bar prep outline on family law. In this article, we will take a look at some of the most frequently tested topics within the subject of family law. There are four most frequently tested areas in this subject.
- Economic issues is one of the most frequently tested topics within family law.
- Matters that pertain to children would be the second most frequently tested topic
- marital termination
- Matters preceding marriage are tested, but are the least tested area overall.
The division of marital property and assets in a divorce is one of the most highly tested topics on the UBE. The principal distribution method of marital property is equitable distribution. But you can only equitably distribute property once the judge determines what is marital property as opposed to individual property.
Separate property of either the wife or husband is any item owned prior to the marriage, a gift or inheritance received by one spouse in their name only after the marriage, and appreciation in value on anything above. (Please keep in mind that any joint gift, including wedding gifts, is considered marital property.)
Everything else is marital property. That means that anything acquired through the work of either spouse is marital property. It doesn’t matter whose name is on the lease or title, who worked to get the money to pay for it, etc. It all goes into the pile labeled “marital property.”
As you probably recall from your law school class on family law, a judge will take many factors into consideration when dividing the assets. She will look at things like the length of the marriage. The longer the marriage, the more evenly the property is distributed. Also, any factor that makes it more difficult for one spouse to accumulate money after the divorce will weigh in favor of giving that person more of the marital assets. Think of one spouse getting very ill during the marriage, or a huge discrepancy between education levels. These things point to an inability to sustain oneself after the divorce and generally result in a greater percentage of marital assets going to the less “able” of the spouses.
Marital “fault” is rarely taken into account. Another interesting thing taken into account is whether one party contributed to a waste of marital assets. Just think of an angry husband dissipating 1000’s of dollars, with the sole intent being to keep it from his ________ (insert angry adjective here) wife! Yes, this actually happens and can be devastating to the other spouse, no matter how (adjective!) he or she can be.
Then there is alimony and child support. These are two important topics.
The current trend is for smaller alimony awards, particularly in two income families. However, some states do look at marital fault in this scenario. Alimony comes in four forms that you should be familiar with. There are permanent, periodic payments, lump sum payments, rehabilitative awards, and reimbursement orders. You should also know which of these is modifiable after the entry of a final judgement, and which are not.
Child Support and Child Issues
Child support is not waivable! That is important to remember, both in practice and for the bar exam. Child support is not the ‘right’ of either spouse to claim, but instead, it is the right of the child. In the real world, people often do not see it that way, but there it is! Biological parents of a child are deemed to have a duty of support. A custodial parent will not pay child support, the non-custodial parent will.
But ultimately, the amount of child support is determined by a formula developed by each individual state. The judge is free to depart from this formula, but must state equitably reasons why on record. The judge will begin with the number of children and the amount of income derived by the parties. This support continues until the child reaches 18 years of age, although some states will continue it through college.
Child support is modifiable through a showing of changed circumstances. Be sure to also know how courts will enforce child support orders.
Be familiar with child custody as well. There are two types of custody: legal custody and physical custody. Know the difference, and know who decides this and based on what factors.
Know that the standard here is best interest of the child. There are many factors taken into consideration in determining the best interest of the child, and you should know them all. Also know how jurisdiction is determined, as this can be a sticky area for parents who relocate or don’t reside in the same state.
Marital dissolution is the next highly tested area. There are two types of marriage dissolutions. Annulment and divorce. Know what grounds exist for an annulment. All states have “no-fault” divorce, although some still maintain grounds upon which a spouse can file for divorce based on misconduct or “fault.” Know the grounds upon which this can be applied, as well as the affirmative defenses to such claims.
There is also legal separation, which is not a dissolution. Know the differences.
The process of getting married is the least tested area. It would still be wise to know about pre-marital issues such as marital gifts, prenuptial and antenuptial agreements. Also important is the requirements of a legal marriage.
I hope this helped give you an overview of the family law issues you may encounter on the essay portion of the Bar Exam! Once you dive into your outline you may find that you recall much of what you learned in your class at law school. Commit it to memory, and the essay should flow! Good luck!
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