Property Classification & Equitable Division

When spouses get divorced, there are multiple approaches taken to divide their property. The approach to know best for Family Law on the UBE is equitable division of marital property. 

This approach requires two steps: first, property must be classified into marital property or separate property. Once it's been classified, the marital property is divided. Marital property is divided equitably, but separate property, generally, remains with the party who owned that property. The following is included within the classification of separate property:

~ Property owned before marriage

~ Property acquired by gift or inheritance 

~ Property acquired in exchange for other items of separate property

~ Income and appreciation of items of separate property. 

~ Awards for pain and suffering

~ Personal damages

~ Property acquired after an order of legal separation if the separation includes a final disposition of property.

Next, is to determine marital property. In a general sense, marital property is property acquired during the marriage. Some specific examples of marital property are employment benefits, stock options, and pension rights earned during the marriage even if these will not vest until after the divorce. 

Things can get a little more complicated, though. For example, if separate property is inextricably intertwined with marital property to the extent that it no longer makes sense to classify it as separate property, then it may be classified as marital property. Likewise, if separate property is improved with marital funds, that separate property, or parts of that separate property, might be re-classified as marital property. Also worth noting is that a pension plan can be both marital property and separate property. Only the portion of a pension earned during the marriage is marital property.

Once property has been classified as marital property, the next step is to equitably (though not necessarily equally) divide and distribute that marital property to the parties. Once the divorce is final, so too is this distribution; it's not modifiable. Quite a few factors are used by the court in determining how to equitably divide and distribute the marital property. Among the factors are the following:

~ The age, education, and earning capabilities of both parties

~ The duration of the marriage

~ The standard of living during the marriage 

~ The present income of both parties

~ The health of both parties

~ The assets, debts, and liabilities of both parties

~ The needs of both parties

~ Child custody provisions

~ Alimony considerations

~ The opportunities that both parties will have to acquire future income

~ The contribution that each party made to the acquisition of marital assets

~ The contribution that both parties made to the marriage (for example, as a homemaker)

~ Whether either party has dissipated marital property (in other words, an assessment of economic fault)

Knowing how to classify the property and then knowing how to distribute the property once it's been classified will put you in a good spot to earn points should these topics show up on the exam. 

The Uniform Interstate Family Support Act ("UIFSA")

Many find Family Law to be among the more approachable subjects tested on the bar exam. Some of the  issues tested in the subject can get a bit thorny, though. One such issue deals with the enforcement of both child support orders and spousal support orders. 

The relevant question here is that once there has been an order for child support or for spousal support, how is that order enforced? The vehicle for enforcement is called the Uniform Interstate Family Support Act ("UIFSA")

One purpose of the UIFSA relates to jurisdiction. Through the UIFSA, a state can obtain jurisdiction over a support debtor even if the debtor is a nonresident of the state. It essentially functions like a "long arm" statute. Further, once it's determined that a state has jurisdiction over the debtor, it is said to retain "continuing exclusive jurisdiction," provided that at least one of the parties (either parent or the child) continues to reside in that state. Importantly, that state will then be the only state authorized to modify the original support award. 

Once jurisdiction is determined, the next step in the analysis is to determine how to enforce (as per the UIFSA) the support order. The gist here is to ensure that the obligor who owes the support pays the support. To do so, an income withholding order may be mailed directly to an out-of-state obligor's  employer. This will trigger withholding from the employer unless a timely objection is made. Alternatively, the order to withhold may be mailed to the support enforcement agency in the obligor's state.

A few other enforcement avenues are available as well, such as ordering an unemployed obligor to participate in job training and to seek unemployment; withholding professional licenses, driving licenses, etc., from the obligor, requiring the spouse of an obligor to secure insurance or a bond to cover the obligation, etc.

Once an order has been issued, the role of the state that issued the order is to continue to enforce that order. The support order cannot be modified by any state that did not issue the order unless the parties no longer reside in the issuing state or the parties consent to the non-issuing state's assertion of jurisdiction to modify.

Next, is to determine the penalties for non-payment. If an obligor has the ability to pay but fails to do so, the obligor may be held to be in civil contempt. Criminal contempt is likewise possible if the obligor's failure to pay is deemed willful. It only gets worse if it's continual: any party who has previously been held in contempt for failure to pay who then willfully fails again to make the required support payment commits a first-degree misdemeanor. 

Premarital Agreements

A recurring issue that shows up on Family Law essays is premarital agreements. First to note is that these agreements are valid contracts, and the marriage itself is the consideration required for formation of the contract. 

The law to apply on the UBE is called the Uniform Premarital Agreement Act ("UPAA").  The UPAA provides that parties can enter into premarital agreements with respect to their rights and obligations in property. The agreement may also include directives as to disposition of property upon separation, divorce, or death. Modification or elimination of spousal support upon divorce or separation, choice of law governing construction of the agreement, and any other matter not in violation of public policy or a criminal statute will all be enforced if the premarital agreement is deemed valid. Child custody provisions in a premarital agreement, however, will never bind the parties. Such provisions violate public policy as they do not necessarily take into account the best interest of the child. 

Often tested is the enforcement of such agreements. For a premarital contract to be enforceable, most courts require that the agreement is entered into voluntarily and that the contract is in writing and signed by the party to be charged. In addition, both parties must make a full and fair disclosure of their financial worth and all economic provisions within the agreement must be both fair and reasonable. A premarital agreement will be unenforceable if a party did not enter into the agreement voluntarily or if the agreement was unconscionable when executed. Unconscionability will often be found if a party was not provided fair disclosure and did not have adequate knowledge of the other party's property or financial obligation when signing the agreement.

It's not required by the UPAA that both parties to the agreement are represented by independent counsel, but if both parties are represented by independent counsel, it is less likely that a court will refuse to enforce the contract based on unconscionability. In other words, if one party presents the agreement to the other party a week before the wedding, that alone will not necessarily invalidate the agreement, especially if there is time for each party to obtain independent counsel. Whether that wedding will still take place is beyond the scope of this post. 👀

In determining the choice of law to apply to premarital agreements, the following holds: first check to see if there is a choice of law provision within the premarital agreement. If there is, that choice will apply. If there is no choice of law provision, then enforceability of the agreement is 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.

Grounds for Divorce

If a Family Law essay shows up on the UBE, there is a strong chance that divorce might be among the issues tested.  Since states can vary as to the grounds required to obtain a divorce, it's important to know how to approach that issue on the UBE.

Most state statutes provide for divorce without any regard to fault. Since fault is removed from the equation, it's only required that there is a showing that the marriage has been irretrievably broken and/or the parties to the marriage have been living apart for a specified period of time.  If one spouse wants to defend against the divorce then that spouse will need to deny existence of at least one of these grounds.

But some states do require a showing of fault to obtain a divorce.  The usual grounds are adultery, wrongful desertion for a specified time, extreme physical or mental cruelty, voluntary drug addiction or habitual drunkenness, and a spouse's mental illness.

If analyzing a divorce requiring fault, the final step would be to determine whether any defenses exist. The following are defenses to a divorce requiring a degree of fault; in other words, these defenses would be raised after one spouse has proven that the fault required for the divorce has been satisfied.

Collusion: This is an agreement between the spouses to simulate grounds for divorce or to forego raising a valid defense.  If collusion is proven, this might prevent the granting of a divorce requiring fault.

Connivance:  If one spouse willingly consents to the other spouse's misconduct, the consenting spouse may be prevented from using that misconduct as a basis for proving that it amounts to the fault required for a divorce.  Should be noted that this is a very limited defense that has been abolished in most states.

Condonation: This is the forgiveness of marital offenses with full knowledge of their commission.  An indication of forgiveness would be resuming the marital relations after gaining the knowledge of the offenses.

Recrimination: This defense arises when a spouse seeking a divorce is also guilty of misconduct that the other spouse could use to obtain a divorce. This defense is no longer recognized.

For the most part, on the UBE it would be enough to analyze no-fault divorce.  But knowing a bit about how various states approach the question doesn't hurt when providing some background for the analysis.

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA")

An area of some complexity that shows up in Family Law is jurisdiction for child custody cases.  And when I'm working with students who are preparing for the MEE, it's an area we spend some time on because it's important to know it well should it show up on the exam.  In other words, it could amount to a large percentage of the points in any given essay.

The Act to understand well in this regard is the Uniform Child Custody Jurisdiction and Enforcement Act which is far too many words and so after mentioning it once in an essay, just call it the UCCJEA.  The purpose of the Act is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation as well as promote interstate cooperation. It also aims to facilitate the interstate enforcement of custody and visitation orders.

And so a question may be raised in a fact pattern as to which state has jurisdiction to initially enter or to modify a child custody or visitation order.  First, we look to the home state of the child. A child's home state is the state in which the child lived with a parent (or a person acting as parent) for at least six consecutive months immediately before the commencement of the proceeding.  If the child is less than six months old then the home state will be the state where the child has lived since birth disregarding temporary absences.  A court in the home state of the child will have jurisdiction to enter or modify a custody or visitation order

It's possible, though, that a child had a home state (had been living in the state for at least 6 consecutive months) and within the last six months has moved out of state.  A court in the state that was recently the child's home state will have jurisdiction to enter a custody order if a parent or person acting as a parent continues to live in that state.

Further, it's also possible that no state will satisfy the home state test as stated above.  If no state has or accepts home state jurisdiction then a court will have jurisdiction to enter or modify a custody or visitation order if that court sits in a state in which the child and at least one parent (or persons acting as parents) have a significant connection and if substantial evidence concerning the child is available in that state.

When analyzing jurisdiction for these purposes, I would first look to apply the home state rules and then move on to the significant connection test if necessary.  And then note that the court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until neither the child nor the child's parents (or persons acting as a parent) continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state.

Even if a court has jurisdiction as outlined above, the court may choose to decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.  Finally, note that under some extreme circumstances, a court may have temporary emergency jurisdiction even if the general jurisdiction rules as outlined above are not satisfied.  This should be applied sparingly, though; a court will have temporary emergency jurisdiction if the child has been abandoned or if it is necessary in an emergency to protect the child because the child, the child's sibling(s), or the child's parent is threatened with or subjected to abuse.