When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide some of those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays.
February 2017: Family Law
An initial issue is whether Andrew and Brenda formed a common law marriage in State A. If they did form a common law marriage, then it must be determined whether they remain married. There are elements to the formation of a common law marriage. Formation requires cohabitation, an agreement to be married, and holding oneself out to others as a part of a married couple. Separation, unlike divorce, does not legally end a marriage.
The facts provide that Andrew and Brenda lived together, seemingly agreed to be married, and, to their friends and others, held themselves out as a married couple. They were separated, but nowhere in the facts does it indicate that there was a divorce. In contrast, the facts tell us that Andrew told Brenda that a divorce is not necessary, and, apparently, Brenda agreed.
As such, the elements of a common law marriage seem to have been satisfied. That marriage was not ended by the separation, so it’s likely that Andrew and Brenda remain married.
Assuming a common law marriage does exist, the next issue to determine is whether State B will recognize the common law marriage that was entered into in State A. A marriage valid in one state (here State A) is generally valid elsewhere unless the other state has a strong public policy against validating it. Although some states might have such a policy against common law marriage, history reflects that most do not. Courts have consistently held that public policy does not preclude common law marriages in their own states.
Thus, unless State B varies from what has consistently been held, it is likely that State B will recognize the common law marriage entered into in State A.
The next issue is whether Andrew, as per his common law marriage to Brenda, should be entitled to a share of Brenda’s lottery winnings. Most states hold that marital property continues to accrue up until the time that the marriage is dissolved, and, as stated above, a marriage is dissolved upon divorce, not separation. Upon divorce, the marital property accrued during the marriage is generally divided equitably.
Here, there has been no divorce. Since the marriage has not been dissolved, the lottery winnings would therefore be deemed marital property and if a divorce is sought, a court will aim to divide the winnings equitably. How that will play out is questionable, but the court will likely account for the short duration of the common law marriage and the lack of relationship after the separation in deciding what is equitable.
Therefore, although Andrew is not precluded from sharing in the lottery winnings, it’s more likely that a judge will award Andrew little if any of those winnings when deciding an equitable avenue for dividing that property.
Next, we should evaluate whether Daniel might have a claim that Brenda’s lottery winnings are marital property to which he is entitled to a share. For these lottery winnings to be deemed marital property, there must be a valid marriage between Brenda and Daniel. Bigamy is illegal in all states. No individual may have more than one legal spouse at any given time. There is a strong presumption that the latest in a series of marriages is valid. To rebut this presumption will require strong evidence that the prior marriage is (1) valid, and has (2) not been terminated.
Here, first, the presumption would take effect and the later marriage between Brenda and Daniel would be deemed valid. If Brenda now would like to avoid that conclusion (so that Daniel is not entitled to a share of the lottery winnings,) she’ll need to rebut that presumption by proving that her prior marriage to Andrew was valid and had not been terminated. As discussed above, it’s likely that a valid common law marriage was entered into. As to whether that marriage had been terminated is a trickier question. As discussed, though, there had been no divorce to terminate that prior marriage; there had only been a separation.
As such, it appears that because Brenda was married to Andrew and because that marriage had not been terminated prior to her attempted marriage to Daniel, that later marriage to Daniel will likely be deemed bigamous and void. Daniel is therefore unlikely to share the lottery winnings if basing his right to that share on a valid marriage to Brenda.
Next is to determine whether there might be another avenue available to Daniel other than a claim of marital property to share in the lottery winnings. The putative-spouse doctrine permits a would-be spouse, who participated in a wedding ceremony under a good-faith but ultimately mistaken belief that the marriage was valid, to be treated as a spouse for purposes of equitably distributing property obtained during the invalid marriage.
The facts here do present evidence not only that Daniel believed in good faith that he was validly married to Brenda, but that Brenda believed the same. Daniel apparently had convinced Brenda of this validity by explaining that divorce was not required for her to end her previous common law marriage to Andrew.
It is thus possible that Daniel might be able to use the putative spouse doctrine to seek an equitable distribution of the property obtained by both him and Brenda during the marriage, including the lottery winnings.
Lastly is an issue of visitation. It must be determined whether Daniel might obtain court-ordered visitation with Chloe, even if Brenda objects. Brenda is a parent of Chloe, but Daniel is not. Parents have a fundamental constitutional right to control the upbringing of their children, and this includes deciding who will have the right to visit their children. Because of this constitutional right, courts are required to give special weight to a parent’s reasons for denying another’s the right to visitation. Ultimately, though, the best interests of the child might outweigh even the special weight granted to a parent’s decision on the matter.
A court here will be sure to give that special weight to Brenda’s reasons for wanting to deny visitation rights to Daniel. Daniel, however, has lived with Chloe for 9 years and Chloe is 11 years old. Chloe calls Daniel “Dad” and believes him to be her father. Chloe became upset when she learned that her contact with Daniel might be cut off. Brenda not only intends to limit Chloe’s contact with Daniel, but intends to eliminate it. Chloe also does not have any relationship with her biological father, and so cutting off contact with Daniel will effectively cut off contact with any father figure for Chloe.
The resolution here is uncertain. The court will give weight to Brenda’s decision as to visitation, as the court is constitutionally required to do. That said, even the strongest presumption here is subject to rebuttal. The best interests of Chloe might well provide the rebuttal necessary to grant Daniel reasonable visitation rights so that Chloe will continue to have a father figure in her life.
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