Conflict of Laws (Family Law)

Conflict of Laws is a bit different than other subjects tested on the UBE.  Historically, though I suppose this can change at any time, it has only shown up as a sub-topic within an essay primarily testing another subject.  So, perhaps one out of multiple questions on an essay will ask about a Conflicts issue while most of the remaining points are awarded for knowledge about a different substantive area.

As such, when studying for Conflict of Laws, it's important to understand how to analyze these issues as they might show up attached to a different subject area. I'll focus a variety of posts on this with this post focused on how a Conflict of Laws issue might show up in a Family Law essay.

Here's what to know:

Pre-Marital Agreements: The enforceability of premarital agreements are generally governed by the law of the state in which the agreement was executed or the law of the state with the most significant relationship to the parties and to the pre-marital agreement.

Marriage: A marriage valid where celebrated is valid everywhere and likewise a marriage void where celebrated is void everywhere. There is, however an exception: a marriage, even if valid where celebrated may be invalid in a different state if the marriage violates a "prohibitory rule" of the domicile of one of the parties and if the parties immediately return to and become domiciled in that state. Prohibitory rules are generally those that express a strong public policy of a given state.

Annulment: Annulment is governed by the law of the place where the marriage was celebrated.

Divorce: Issues involving divorce are governed by the law of the plaintiff's domicile.

Children: Attempts to legitimate a child (to change a child's status from non-marital to marital) are valid if valid under the law of the father's domicile. Property incidents related to the child's status are generally governed as directed by the First Restatement (the law of the state where the property is located) or the Second Restatement (the law of the state that created the status of the child).

Adoption: A court will apply its own local law to govern adoption. Property incidents related to adoption should be analyzed either by the law of the state where the property is located or by the law of the state where the adoption took place.

Analytical Approaches to Conflict of Laws

Conflict of Laws is a very convoluted subject. Perhaps the most convoluted on the UBE.  Thankfully, there has been a limit to how it's tested; usually it'll show up as one question in a set of questions testing another subject.  But it does show up, and it'll be important to understand how the rules apply to a variety of subjects such as Torts, Property, Contracts, Family Law, etc.

But a really good start before diving into all those details is to understand the three analytical approaches that apply to any choice-of-law issue. The approaches will vary depending upon the subject-matter at issue, but the foundation used in deciding which law to apply in a given case doesn't change.

The first approach is called the "vested rights approach of the First Restatement." If applying this approach you'll first want to characterize the area of law (Torts, Contracts, Property, etc.). And then next is to determine the particular choice-of-law rule that applies to that subject matter. For example, in Torts the rule is to apply the law of the place where the wrong occurred and in Contracts the rule is to apply the law of the place where the contract was made or performed. Essentially, you're applying the law of the place where the parties' rights vested (where the event occurred that was necessary to create the cause of action).

The second approach is called the "most significant relationship approach of the Second Restatement." This approach directs you to apply the law of the state that has the most significant relationship to the occurrence or transaction and the parties. In determining which state has the most significant relationship, there are a variety of relevant factors including the following: the needs of the interstate and international judicial system; the relevant policies of the forum; the relevant policies of other interested states; the protection of justifiable expectations; the basic policies underlying the particular area of law; the need for certainty, predictability, and uniformity; and the ease of determining and applying the chosen law.

Lastly is "interest analysis." With this approach, we're directed to first start from the assumption that the forum will apply its own law. Then we're told to consider whether the forum has any interest in the litigation; if not, it's called a "false conflict" and the forum will apply the law of the state other than the forum state.  If the forum and the other state both have an interest then there is a "true conflict" and the forum will reconsider its own policies. If the forum finds that it has a legitimate interest it will apply its own law and if it finds that it is a "disinterested forum" then it will dismiss the case if forum non conveniens is available. If it is a disinterested forum and forum non conveniens is not available the forum will make its own judgment as to which law should apply or it will apply the law of the state that most closely resembles its own law.

Quite confusing, but address these issues with the above approaches and there are plenty of points to be scored.