Family Law

Sample Examinations

It is understood by the student whose Student Number is entered below that this examination is given and the student's response is made and submitted pursuant to the conditions and provisions of the Honor Code.

Student Exam No. _____________

UNIVERSITY OF MISSOURI-KANSAS CITY

SCHOOL OF LAW

Family Law - Law 751 Spring Semester 2001

Professor Glesner Fines

FINAL EXAMINATION

(Three Hours)

INSTRUCTIONS:

1. This is an open-book exam. You may use any written materials (text, notes, commercial outlines, etc.) you wish. You may not consult with others on the exam or share written resources with one another.

2. There are 5 pages to this exam. Check now to see that you have all pages. Answer the questions in the blue books provided. You may use every line and every page, but do be legible, CLEARLY LABELING THE NUMBER OF EACH RESPONSE. If you use more than one blue book, please label each bluebook (e.g. Book 1 of 3, Book 2 of 3, etc.).

3. The suggested times for each section or question reflect its relative point value. The total suggested time is 2 ½ hours, leaving ½ hour for reading the exam. PLEASE BUDGET YOUR TIME CAREFULLY!

4. You must return the entire examination and blue books at the end of the three hours to receive credit for the exam. Any copying of any exam questions or answers is prohibited.

5. Points are given for well-formulated arguments and skillful use of law in resolving the issues presented by the facts, not for total words written or cases & rules cited. Answer the questions asked. Your answer should be concise, organized and coherent. I have included all the facts that I think you need to answer the questions. If you believe you lack the facts necessary to address an issue, make explicit any reasonable assumptions you are making and why, or indicate what facts need to be investigated and why, or both, as appears appropriate. It will be unwise to make factual assumptions that are far fetched, which unnecessarily raise issues not otherwise suggested by the provided facts, or which avoid issues reasonably raised by the facts.

6. Unless you are directed otherwise, assume all questions are governed by the Law of Missouri.

Part One: Ten Warm Up Questions - (30 minutes total)

ANSWER IN THE BLUE BOOKS PLEASE!

TRUE OR FALSE: Indicate whether each of the following statements is true or false. These are not meant to be tricky questions.

1. The FPKPA and UCCJA provide parallel standards for jurisdiction in child custody actions.

2. If a child is attending a secondary school program of education or is disabled and unmarried, the parental support obligations end at 21 years.

3. The IV-D program is a federal program providing limitations on adoption for parents with certain health conditions.

4. The presumption of the validity of the last marriage and the putative spouse doctrine provide the same remedies for innocent spouses whose marriages are otherwise invalid.

5. If a couple followed all requirements for marriage except solemnization, when the husband dies, the husband’s sister can attack the marriage in a probate proceeding.

6. Courts may not award lump-sum payments unless there are liquid assets from which those payments can be made; otherwise, the court is simply providing "damages " judgments in a divorce action.

7. The court may not consider the value of separate property held by either spouse in deciding how to distribute the marital property. Otherwise, property division could be used to "backdoor" the division on non-marital assets.

8. Because the federal courts do not exercise jurisdiction to decide family law actions, family law is governed almost entirely by state law.

9. Jurisdiction over the defendant seems to be neither necessary nor sufficient to empower a court to hear a divorce case.

10. One can sever an estate by the entirety only by death or divorce.

Part Two- Five Short Essays: (30 minutes total)

Wendy and Henry Green have been married for 18 years; they have two children: Clarence, age 17; and Cheri, age 15. Henry teaches high school biology, making $38,000 annually. Wendy is an artist, with a variable income. While she has never worked outside the home, in the past ten years, she has written and illustrated several successful children’s books. Wendy and Henry are divorcing. Their major assets are listed below. As to each, characterize the property as marital or separate or both and justify your characterization.

11. Wendy’s royalties on the sales of her books of approximately $10,000 a year.

12. Wendy’s 200 shares of stock in Scholastic, Inc., She received 100 shares as payment for her first children’s book. The stock is in Wendy’s name and generates annual dividends, which Wendy has automatically reinvested to purchase additional stock. She currently has 200 shares of stock, valued at $6000.

13. The family home. The couple moved into the home when Henry inherited it from his mother seven years ago. The probate judgment transferred title to Henry only. There was no mortgage on the home and its value at that time was appraised at $50,000. In the intervening years, the market for houses in the Green’s neighborhood has skyrocketed, so that recently, when the couple had their house appraised, they discovered that its value had increased to $100,000. All loans or other financial matters regarding the house have been in Henry's name only.

14. George’s pension through Teachers Insurance and Annuity Association College Retirement Equities Fund (TIAA-CREF) account, valued at $79,949 as of March 1, 2000, payable to Harold in monthly installments upon retirement and unavailable to him before retirement.

15. George’s law suit, not yet settled or decided, claiming $500,000 for personal injuries sustained in an auto accident five days after the divorce petition was filed.

QUESTION 16: ESSAY (45 minutes)

Harry Houseman and Sally Smith begin living together in 1990 in Kansas. Harry was an insurance salesman and Sally was a high school science teacher. Harry insisted that he did not want to get married, as his previous bitter divorce had convinced him that marriage was the destruction of relationships. With Sally’s support, Harry decided to go back to school and get a medical degree. Sally and Harry agreed that first he would finish his education, getting a medical degree, and then he will support her in achieving her dream of a Ph.D. in educational administration. Sally left her teaching position and took a job in insurance sales. She turned down an offer for a prestigious Ph.D. program in Educational Administration from Harvard

Harry enrolled at KU, where he and Sally lived in married student housing, representing themselves as married so they could qualify for an apartment. Sally regularly introduced herself as “Harry’s wife,” in social settings, to which Harry would often respond with a joking, “Yea, well, sort of.” After Harry graduated, they moved to Missouri and Harry began a residency at Children’s Mercy.

After finishing his residency, after they had lived together for ten years, Harry told Sally that he would be leaving. The couple have no assets to speak of and about $70,000 in student loans and consumer debt.

Sally will need to take at least one semester of classes to have her teaching certification in Missouri. She will earn about $37,558. If she goes back to school to get her Ph.D. it will take about six years, cost $68,000, and will increase her annual earning capacity to $70,000. Harry has just accepted a staff position at a hospital in Sacramento, California earning $120,000 annually to begin.

Sally has come to you for advice. What legal recourse does she have against Harry?

QUESTION 17: ESSAY. (45 minutes)

Your client Frank has asked for your help regarding his son, Sonny. Frank is currently serving a ten-year sentence in the custody of the Missouri Department of Corrections for burglary. By Frank’s estimation, Sonny was conceived approximately one month before his arrest and incarceration in October 1995. Around the time of Sonny's conception, Frank was living with Sonny's biological mother Mona. Mona was, at that time, married to Harry Husband, but she had not lived with him for over a year. Your investigation indicates that Sonny was born April 1, 1996. Mona was, at that time, still married to Harry Husband, though they still did not live together. When Sonny was born, Mona named the child using her surname and left blank the designation for the father's name, because she says that she did not want Frank to have any rights to the child and Harry had not been part of her life for two years. Harry obtained a default divorce in 1998. The divorce petition alleged that no children were born of the marriage.

At the time Frank was incarcerated, he didn’t know that Mona was pregnant. In 1998, in a conversation with his brother, Frank first learned of Sonny. Upon learning of Sonny, Frank called Mona and, asked about Sonny. Mona let Frank talk to Sonny on the phone but refused to bring him to the prison for a visit. Approximately one month after this contact, in July 1998, the juvenile court assumed jurisdiction of Sonny and placed him in the custody of Greene County Division of Family Services (DFS). As a result, he did not have any contact with Sonny for two years following his first and only phone conversation with him. He explains, "No one informed me where Sonny was at. It took me that long to find out where he was at." In January of 2000, Father learned that Sonny was in the custody of Greene County DFS. At that point, he made contact with Sonny’s DFS caseworker. Frank sent Sonny cards and letters on birthdays and holidays with small toys or books, but did not provide any kind of financial assistance, because, he explains, he earned only $7.50 per month. Sonny’s caseworker has indicated that Sonny has no emotional connection to Frank and has never talked or asked about him.

Mona has consented to termination of her parental rights to Sonny, who currently lives with a foster family that would like to adopt him. When Frank contacted Sonny’s case worker about the pending adoption, she indicated that Frank could do nothing to stop the adoption because Harry was the father under Missouri law and he was willing to consent as well. Frank wants to know if what the case worker has told him is true and what he can do to establish rights to Sonny. He will be eligible for parole in one year and would like Sonny to live with him. Frank’s brother has offered to help Frank find work and let Frank and Sonny live with him until Frank gets settled. What is your advice to Frank?

END OF EXAMINATION. BE SURE YOUR EXAMINATION NUMBER IS ON ALL BLUE BOOKS. TURN IN BLUE BOOKS AND THIS EXAM BOOKLET OUTSIDE THE EXAMINATION ROOM AND SIGN OUT.

Have a Great Summer! BGF

Student Exam No. _____________

UNIVERSITY OF MISSOURI-KANSAS CITY

SCHOOL OF LAW

Law 751 - Family Law Winter Semester 2000

Professor Glesner Fines

FINAL EXAMINATION

(Three Hours)

DESCRIPTION OF EXAM

2. There are five questions, equally weighted. Please budget your time accordingly. (For example, if you spend ½ hour reading the exam, that gives you 30 minutes to answer each question). Answer the questions in the blue books provided. You may use every line and every page, but do be legible. If I can't read your writing, I will not award points for your answers. Answer the questions in the order in which they are presented, clearly labeling the number of each response. If you use more than one blue book, please label each bluebook (e.g., Book 1 of 3, Book 2 of 3, etc.).

3. All facts are cumulative unless stated otherwise. All facts occur in the state of Bliss. Unless directed otherwise, assume that the legislation in the state of Bliss is identical to Missouri and that the courts would view Missouri common law as very persuasive.

QUESTION ONE

Wanda and Hal were good friends throughout high school. They went to the same college, where Wanda majored in business and Hal in music education. During Hal’s junior year, he proposed that he and Wanda get married. He and Wanda had never become romantically involved (though Wanda had always hoped their friendship would evolve into a more intimate relationship) so Wanda was somewhat surprised by the proposal. As they talked over the proposal, however, it became clear that Hal ’s desire to marry was solely for the purpose of satisfying a condition of Hal’s father’s trust, in which Hal had to marry by age 22 in order to be distributed the principle of the trust. Even so, Wanda accepted his proposal, all the while thinking that once they were married she would be able to change his heart. The couple applied for and properly obtained a license.

In the week before the wedding, Hal spoke to Wanda about their financial arrangements. He explained to her that he had no real assets to speak of: he had financed his education thus far through student loans, which he expected to pay off when the trust was settled. While Hal was aware that Wanda had obtained a merit scholarship providing for her tuition, books, and a substantial stipend for all four years of college, he did not ask nor did she tell him that she also had a small portfolio of stock (about $25,000) given to her by her aunt upon graduation from high school. Hal and Wanda agreed that they would move into Hal’s apartment and Wanda would contribute her stipend to support them both for their final year of college.

Hal then presented Wanda with a pre-nuptial agreement in which they agreed that they would split all property acquired by either during the marriage, regardless of the source, with 80 percent to Hal and 20 percent to Wanda. Hal explained how grateful he was to Wanda and that this agreement was simply his way of saying thank you by insuring that she would have a right to some of his trust proceeds. Wanda resisted signing the agreement, saying that she loved him and didn’t need to be paid to marry him and hoped that he would see that their relationship would last beyond college. Hal insisted, however, that she sign the agreement, so she consented. The next day, they were married in a ceremony presided over by a local judge.

Hal has come to you for legal advice. He and Wanda have been married for ten months. Hal’s uncle has indicated that he will challenge the validity of the marriage in order to contest the distribution of the trust. Hal wants to know if the uncle can challenge the marriage and what Hal can do to insure that the challenge will be unsuccessful.

QUESTION TWO

Assume that the uncle decides not to challenge the marriage after all, and Hal receives the principle from the trust, in the amount of $200,000, most of which he invests in a real estate partnership in his own name. The income from the partnership (about $20,000 annually), Hal has deposited in a bank account under both Wanda and Hal’s name.

Wanda and Hal graduate from college and, much to Wanda’s delight, Hal appears to have no plans to leave their marriage. They have continued to act as best friends and confidants, though Wanda is somewhat confused by Hal’s apparent lack of interest in her sexually. Wanda had always viewed their prenuptial agreement as a symbol of Hal’s desire to eventually divorce, so she was especially comforted when he agreed to formally rescind the agreement on their second anniversary.

Hal and Wanda both wanted to pursue advanced degrees, Wanda in law and business and Hal in music. They decided that they would both begin their studies at Hometown University, living off Hal’s investment income and Wanda’s scholarships, along with whatever part-time work each can find. However, during Wanda's first year of law school, she became pregnant, and when their son Junior was born, Hal decided that he would prefer to postpone his formal studies and stay home with the baby and try his hand at composing music. Wanda could then complete her degree and establish her legal practice.

Wanda graduated with highest honors and $25,000 in student loans and joined a prominent firm doing plaintiff's personal injury work. After two years in the library, Wanda would like to establish a solo practice. She has come to you for advice in evaluating her financial arrangements, both as a matter of curiosity and because she is concerned about her own potential liability as a result of some recent unsuccessful real estate investments on Hal’s part.

Wanda has kept her stock portfolio in her own name, reinvesting automatically all the dividends generated. The portfolio has grown dramatically, and is now worth $40,000. Except for about $1000 a month she has automatically deposited to a separate savings account in her name alone, she has deposited all her income from her practice in their joint bank account,

The current value of Hal’s real estate partnership is approximately $180,000. All income generated by the partnership has gone into Wanda and Hal’s joint bank account. During this past year, Hal has purchased a boat from the bank account and made stock investments that amount to approximately $50,000. On each of these investments and purchases, Hal has acquired title in his name only. How would you advise Wanda on the following questions:

* Who owns what?

* To what extent can Wanda’s creditors reach Hal’s wealth?

QUESTION THREE

Junior is now six years old. He attends full-day kindergarten at a private school two blocks from home. When Junior began school, Hal decided that, rather than returning to school himself, he needed a more immediate outlet for his musical talents and so he began to give piano lessons at home and to participate in community theater. During one of the community productions Hal met Mike, also a musician. They fell in love and Hal has approached Wanda for a divorce. Hal asks Wanda to understand that, after all, they hadn’t gotten married for any reason other than the trust income anyway and that, while he tried to live a straight lifestyle, he now realizes he must be true to himself. Wanda is furious. She is also worried about the effect of a divorce.

Wanda feels that she has a closer relationship with Junior than does Hal. Junior clings to Wanda whenever she is home and, if asked, would say without reservation "I love Mom the best." You are sure you could find a psychologist that could testify that Junior has bonded with his mother as the primary parent. However, you are also aware of experts who would testify that most boys Junior’s age and younger tend to attach primarily to their mothers but that identification tends to shift to their fathers at about age seven.

Even though Wanda was busy with law school, and then practice, she still has spent a good deal of time on parenting. As Wanda describes it, she "works three shifts": She gets the household up and running in the morning: feeding and dressing Junior before going to work; she then works a full 9 hour day; finally, she takes over care of the household and Junior when she gets home at night. Most nights, Wanda falls asleep on the couch in Junior’s room. (She and Hal have not slept together in over two years.)

Wanda does admit that Hal has taken good care of Junior and is far more involved with his son than most fathers she knows. While Wanda was in school, Hal watched Junior during the day and fixed dinner. About the time Wanda began practice, Hal enrolled Junior in a preschool for four days a week while Hal worked on his music. If Junior was ill, Hal was also responsible for making the doctors appointments and caring for Junior. Hal also did the majority of housekeeping, though neither Hal nor Wanda has very fastidious housekeeping habits.

Wanda believes sole custody would work well for her. She has been offered a position as a staff attorney in a large firm in OtherCity (about a four hour drive away). Wanda would close her solo practice and the position would give her both greater financial security (though less opportunity to increase her income) and greater flexibility, so that she could take care of Junior as a single mom.

Wanda is frightened about Mike’s influence on Junior. She believes that Mike "lured" away her husband and is most uncomfortable about having him around her son. While she is happy to grant Hal liberal visitation, she doesn’t want Mike to be present. Wanda fears that Hal will fight her for custody. She is happy to grant him the divorce so long as she can retain custody.

Advise Wanda on her legal position regarding custody and visitation. Identify her legal options and advise her on the best course of action to achieve her goals.

QUESTION FOUR

Wanda is also concerned about the financial implications of a divorce. In your interview with her, in addition to all the facts revealed in the above questions, you learn the following:

Regarding the property discussed in question two:

· Wanda’s stock portfolio is now worth $50,000, of which approximately $18,000 is stock purchased with reinvested dividends.

· Wanda’s savings account in her name has a balance of $50,000.

· The current value of Hal’s real estate partnership is approximately $120,000.

· Hal’s boat and other investments in his name only have retained their value at approximately $50,000.

Regarding additional property the couple own:

· The home in which the couple lives has a market value of approximately $200,000. It was purchased with a $40,000 down payment from Hal’s trust proceeds. There is a $100,000 balance on the mortgage and it is jointly titled.

· Wanda’s solo practice has been very successful. Her income last year was is in excess of $150,000. She currently has $50,000 in accounts receivable and is working on three large contingency fee cases. Case #1 has been settled for $500,000, but no payments are likely to be made before the divorce. In Case #2, Wanda’s client won a $80,000 jury verdict, but the case is on appeal. Case #3 is in the discovery stages, but the most recent settlement offer by defense was nearly one million dollars.

· Hal earns approximately $15,000 annually on music lessons and his real estate partnership and other investments provides another $15,000 in income.

Assume the couple has worked out a mutually satisfactory custody arrangement. Wanda has taken the staff attorney position and moved to OtherCity, where Junior will live with Wanda during the school year, and Hal has visitation every other weekend. The arrangement reverses during the summer and school breaks. Assuming the court would approve their agreement, advise Wanda on the range of outcomes she might expect from the court in distributing the property (that is, what property is marital and what arguments would be presented regarding the distribution of this property). Suggest a strategy that will accomplish her goal of retaining as much of the financial resources of the marriage as possible.

QUESTION FIVE

Junior is now thirteen years old. Wanda and Hal have managed their restructured relationship with a minimum of rancor. Hal was ordered to pay Wanda $284 a month child support during the ten-month school year, which he has been fairly diligent in paying. During one year after Mike left Hal and Hal lost his job, Wanda agreed to let him skip several months of child support. Both Wanda and Hal’s income has continued to rise since the original order, but neither have sought a modification. Last year, Hal made about $79,000 and Wanda made over $350,000. Based on this income alone, their respective child support responsibilities would be not be calculable under Form 14 alone, but would likely triple at least.

In the past year, however, several other things have changed:

· Wanda has remarried. Her new husband (Guy) is a highly successful computer systems designer making over $500,000 annually. Wanda recently had twins and quit her job to stay home with the babies. She does not plan to return to work until the twins are five.

· Junior has begun middle school and is miserable at NewCity public school. He doesn’t like his new stepfather, who constantly belittles him for being to "sissy" like his father (this is actually a mild version of the language he uses). Junior still feels close to his mother, but feels like she has no time for him now. He wants to move back with his father and attend private school in his hometown.

· Wanda believes that Junior is simply have some difficulty with transitions as well as becoming a teenager and does not believe he would be any happier with Hal. However, she does recognize that Junior has caused a great deal of stress on her new marriage and is willing to let Junior try out living with Hal if the change can be accomplished amicably. She doesn’t want to give over formal custody however, nor does she want to have any formal financial responsibility to Hal.

· Hal shares his son’s dislike of Guy and would love to have Junior away from him. He does want Junior and Wanda to continue their close relationship however. He is excited by the prospect of having his son live with him and appears to be willing to agree to almost any of Wanda’s terms in order to accomplish that end.

Wanda has asked you whether she and Hal can simply agree to trade schedules (Junior living with Hal during school year and with Wanda during summers) and whether she and Hal can also agree that neither would be required to pay child support to the other. Advise Wanda on the wisdom and enforceability of such an agreement, inform her of the likely outcome if Hal were to petition for modification of custody, visitation, and/or child support, and give her alternative solutions to meet her goals.

END OF EXAMINATION

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