CAPSULE OUTLINE: FAMILY LAW
The rules of family law in Bar Exam World can be expected to go something like this:
Everyone gets divorced. Everyone proceeds to fight over the “marital pot” regardless of how
little or how much is in it. (It’s a bit like Hollywood.) The spouses are never on equal
educational footing, and one usually makes considerably more than the other. If there are
children involved, at least one of them will quit school very early and get a low-paying job, or
will stay in school for many, many years, or will be the subject of a dispute because one parent
wants to run off with a new lover and take the child with. Sadly, this might be the most realistic
subject on the exam.
Anyway, that’s why the following subjects are the ones I’ve Capsuled; they seem to be Bar
Examiner favorites.
Divorce
1. 60-day waiting period (unless the court waives it and the parties agree)
2. 6-month residency requirement
3. must obtain personal jurisdiction over the non-movant spouse
Grounds for Divorce
1. incurable insanity of at least 2 years
2. felony conviction
3. incurably impotency
4. irretrievable breakdown (the essays I saw did not test on any of the first three grounds; it
was always just an irretrievable breakdown situation)
Marital Pot
1. Everything owned by either party is subject to division
2. Presume a 50/50 split, but the presumption is rebuttable if such a split would not be “just
and reasonable” using the following factors:
3. house often goes to the custodial parent
4. who owned what prior to the marriage
5. length of the marriage
6. economic circumstances & earning abilities (watch for the vast educational differences
here that lead to one spouse not being able to make as much money as another—see also
#3 under “Spousal Maintenance” below)
7. gifts and legacies left to which spouse
8. conduct of each spouse as to preserving or dissipating the property (watch for gambling
problems or the like for this one)
9. Property may be split “in kind” or one spouse may pay a lump sum to the other.
10. Property settlement agreements are not subject to later modification without a showing of
fraud or concealment of assets, in which case the discovering spouse has 6 years to re-
open
Spousal Maintenance Situations
1. Mental or physical disability
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2. Custody of a disabled or incapacitated child that requires the spouse to stay home from
work part or full time to care for
3. Pursue education or training to increase earning ability—rehabilitative maintenance for
up to three years may be provided
Spousal Maintenance Factors Considered
1. health
2. education
3. length of marriage
4. property received in separation agreement
5. standard of living during marriage
6. financial circumstances
7. age
8. contribution to marital wealth
9. employment prospects
NOTE: I made up the mnemonic “HELPS save FACE”… that sticks in my head because it
makes me think of, if a spouse needs maintenance, then it helps him or her “save face”.
Paternity
1. Child born to married woman = presumption that he is the child of the married couple
2. Same presumption exists if child born within 300 days of a split, or the husband’s death
3. A non-marital child requires the father to execute an affidavit (but watch for situations
when the father treats the child as his own and tells others that it is his child; those count
too)
Paternity Suits
1. personal jurisdiction required, but may be satisfied if the conception occurred in-state
2. child may file until age 20
3. state or mother may file within 2 years of child’s birth
4. any suit must be filed within the father’s lifetime or 5 months thereafter
Child Support
1. until age 21
2. may extend beyond age 21 if handicapped, disabled, or still in-school and has filed a
petition for educational support
3. may end earlier than age 21 if the child joins the military, gets married, or is at least age
18, is out of school and self-supporting (but watch out for children who are over 18, out
of school, but still live at home or rely on substantial support from either parent—they
will not (probably) be considered “self supporting”)
Amount of Child Support
1. Support guidelines use the parents’ income and the number of children
2. A non-custodial parent who regularly exercises his/her parenting time is eligible for a
10% reduction
3. willful unemployment (or underemployment) will allow court to use the parent’s true
earning capacity rather than actual income
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4. medical bills for the child are evenly split over and above the normal support obligations
5. income levels of the parents and special educational needs of the child may warrant a
departure from the guidelines
When Child Support May Be Modified
1. Payor becomes unemployed, incapacitated, or takes a big pay cut (but watch out for
willful underemployment as noted above)
2. child becomes emancipated
3. payor remarries and has new biological children to support as well
Custody: The Best Interests of the Child Factors
I remember that if you’re acting the best interests of the child, I would hope that when I saw the
child, I “SAW CHEAR.” (Yes, you have to misspell cheer for this to work.)
1. sex
2. age
3. wishes of child and parents
4. cooperation of parent(s) in visitation
5. health of child and parents
6. emotional condition of child and parents
7. abuse or violence
8. relationships—new lovers, especially
9. IF MODIFYING CUSTODY: be sure to mention that “stability” of the home
arrangements is a paramount concern, but do look at the usual 8 factors again too.
Adoption
1. severs the bond with biological parents
2. both biologicals must consent unless one of them abandoned/deserted the child for more
than 6 months, or unless the potentially adoptive non-parent has legal custody of the child
and the biological parent failed to maintain contact or support for a year
3. a child born of rape or incest—the guilty parent does not get to consent or not consent
4. biological parent may visit an adopted child if the child is over 2 years old, the adoptive
parents agree, and it’s in the child’s best interests (SAW CHEAR!)
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