Family Law
Professor Ann Laquer Estin

Sample Essay Exam
Spring 2005

INSTRUCTIONS

1. This is an open book examination. You may bring into the exam room any written materials that you choose. Calculators are also permitted. You may not consult with others on the exam or share written resources during the exam. Please be careful to avoid discussing this exam with any student in the class who has not yet taken it during the exam period.

2. The exam consists of four (4) essay questions, each worth a different percentage of your final exam grade. The times estimated for each question are based on these weights, and add up to 2 hours and 55 minutes, leaving 5 additional minutes to use as you wish. Note also that the four questions comprise one ongoing problem, so that the facts in Question 1 continue to apply in Question 2, and so on.

3. Please read the questions carefully, and take time to consider your answer before you begin to write. Think about the role you have been assigned in answering each question. If there is statutory or constitutional authority you believe to be directly relevant to your analysis, please cite to that authority. If you think that a missing fact or legal rule is important to your resolution of the problem, you should indicate the fact or rule that you believe needs to be investigated and explain why it is significant.

3. For purposes of this exam please assume, unless you are specifically instructed otherwise, that these problems take place in a jurisdiction in the United States which has enacted the Uniform Marriage and Divorce Act (UMDA), the Uniform Parentage Act (UPA 1973), the Uniform Interstate Family Support Act (UIFSA), and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Unless instructed otherwise, you should assume that the child support guidelines are the same as those applicable in Pennsylvania.

Question 1
25% of Exam
Estimated Time: 45 minutes
(Please answer both Part A and Part B)

Kevin Peters, age 37 is a local entrepreneur who was divorced five years ago. His divorce was ugly, and he has just finished making a series of payments to his ex-wife to complete the terms of their property division. For the past two years, Kevin has been living with a woman named Mary Russell, who works as part of the software design team at Kevin's business. Mary is 28, smart and pretty, and recently turned down a good job in Seattle to stay with Kevin and his company.

Part A

Kevin comes to you for legal advice. He tells you that he loves Mary, but that he is also nervous about where their relationship is going. He says he's "not really interested" in getting married, and that since he got "taken to the cleaners" in his first divorce he wants some assurance that it "will never happen again." He tells you that he and Mary live in his apartment in the city, and spend most weekends at his place at the shore. Kevin pays the bills for their housing, dining, travel and entertainment, but Mary has recently taken on a number of projects for Kevin, including managing the remodeling of the house at the shore and arranging the details for his business entertaining at home. What advice would you give Kevin?

Part B

Assume, instead, that Mary has come to you for legal advice. She tells you that she is four months pregnant, and just beginning to show. Kevin says he's excited about the baby, and about becoming a father for the first time, but he's obviously reluctant to get married. He took Mary skiing in Colorado last month, and presented her with an enormous diamond ring while they were riding a chairlift to the top of the mountain. After their trip, they told Kevin's parents about the baby, and somehow his parents got the impression that Mary and Kevin had gotten married on their vacation. So far, neither Kevin nor Mary has said anything to correct them. Mary's major concern is for the baby, and she wonders whether she should push Kevin harder to get married. She wants to know what her child's legal status would be if they don't marry, and rights she would have if they break up. What advice would you give her?

Question 2
35% of Exam
Estimated time: 60 minutes

Mary comes to see you again, after she and Kevin have been married for about twelve years. They have two sons: Ben, age 9; and Tyler, age 12. Until recently, things seemed to be going well: Mary left work for several years to be at home full time while the boys were young, and she describes their family life as "idyllic." Kevin's business has grown steadily, despite the rocky economic times, and he has been a devoted father for as much time as his busy schedule permits.

For the past two years, Mary has been going to law school, and the boys have had a nanny to watch them after school. Over the same time period, things between Mary and Kevin have grown increasingly tense, and Mary is worried that they may be headed for a divorce. Kevin now spends several nights a week at his apartment in the city, while Mary has remained at their large home in the suburbs with Ben and Tyler. She suspects that Kevin has been having an affair, and she confides in you that she also had a brief romantic interlude with another man several years ago. Although Mary is still hopeful that the couple will be able to patch things up, she wants to understand her financial circumstances a bit more clearly, and has come to you for advice.

Two days before she and Kevin were married, after meeting with someone else in your law firm, Mary signed a premarital agreement. The agreement included this provision:

The parties intend and desire that all property owned respectively by each of them at the time of their marriage shall remain their separate property, together with all appreciation and income from such property. Each of the parties shall retain the title, management, and control of such property, whether real, personal, or mixed. Each party may encumber, sell, dispose, give, or provide by will for the disposition of any or all of his or her separate property.

At the time of their marriage, Kevin's net worth was just under $2 million. His major assets were his business, with a value of $1.5 million, his apartment in the city, with a value of $250,000, and his house at the shore, worth $200,000. Mary's net worth consisted of $20,000 in an IRA account. After the marriage, Kevin took his company public, and his original shares have increased in value to $30 million. In addition to those shares, he has acquired additional shares and stock options since the marriage worth approximately $20 million. Kevin still owns the apartment in the city, which has appreciated to a value of $750,000. About ten years ago, Kevin sold his house at the shore for $300,000, and he used the money to purchase a house in the suburbs. They spent another $100,000 remodeling the house before they moved in. To protect Mary in the event of his death, Kevin had the house in the suburbs placed in joint title, and Mary estimates that its current value is $800,000. Kevin's take home pay is $1.2 million a year, and he has accumulated other investments over the past twelve years with a value of $4,000,000. (Except for the house, all of these assets are titled in Kevin's name alone.)

Mary has a summer job lined up with a law firm in the city, and she expects to be able to clear about $7,000 a month if she takes a job with a big firm after graduation. Since the marriage, her IRA account has increased in value from $20,000. to $50,000. She also has some valuable jewelry that Kevin has given her on birthdays, and a few good antiques she inherited from her grandmother.

Although she's a law student, Mary has not taken Family Law yet. She would like to know what her financial circumstances will be if she and Kevin end up getting divorced. What would you tell her?

Question 3
20% of Exam
Estimated Time: 35 minutes

(For this question, you are to assume the role of a law clerk in a state appellate court. Your judge has asked you to prepare a draft opinion in the case of In re the Marriage of Peters. The judge had already drafted the portion of the opinion given below before she was called out of town. In drafting an opinion for the court, be sure to address the strongest arguments on each side, identifying the cases and law on which you are relying, and explaining the legal and policy arguments that support the ruling you are proposing. )

Kevin Peters appeals from the divorce judgment entered by the Superior Court in the action brought by his wife, Mary Peters. He contends that he has a constitutional right to joint or shared legal custody of the parties' two minor children, and that the divorce judgment infringed upon that right by granting primary legal custody to Mrs. Peters.

Mr. and Mrs. Peters were married in 1990 and have two children, born in 1990 and 1993. The family lived together until July 2002, when Mr. Peters moved out. The next month, Mrs. Peters filed a petition for divorce on the ground of irreconcilable differences. The Superior Court granted the divorce and, after a full evidentiary hearing, awarded primary legal custody to Mrs. Peters. The court expressly considered each of the factors enumerated in the custody statute, finding that both parties were fit and proper parents who were capable of caring for the children and who had maintained a strong relationship with the children. The court concluded, however, that awarding legal custody to Mrs. Peters would be in the best interests of the minor children, as this would offer the children greater stability and continuity. The decree granted Mr. Peters extensive parenting time with the children, including overnight visits every Wednesday and three weekends a month.

Mr. Peters does not attack the court's findings. Rather, he asserts that the federal Constitution mandates an award of fully shared legal custody unless there is proof by clear and convincing evidence that joint custody would be harmful to the children.

(Please complete this opinion for the court.)

Question 4
20% of Exam
Estimated time: 35 minutes

You received a call this morning from your former client, Mary Peters. She moved out of state two years ago with Ben and Tyler following her divorce from Kevin and her law school graduation. The boys are now 12 and 15 years old, and Mary tells you they are increasingly unhappy about traveling several hours each way on weekends to stay with Kevin. Also, after spending two years working in the tax department of a large law firm, Mary has decided to start a consulting business working with nonprofit cultural and arts organizations. The change will give her more time with the boys, but it will also mean a significant drop in her income.

Mary wants to have the current custody arrangement modified so that the boys would only spend one weekend each month with Kevin during the school year. She wants to continue dividing the boys' summer and school vacation periods equally with him. Given her prospective change in employment, she also would like to collect more child support. She believes that Kevin is earning about the same amount that he was when they were divorced in 2003.

If possible, Mary would like to be able to litigate these issues in her new state. She's already checked this out: her new state has an income percentage guideline which provides, for two children, that a noncustodial parent should pay 28 percent of his or her net income as child support.

How would you counsel Mary in this situation?