Family Law on the Bar Exam: Marriage, Divorce, and Child Custody Rules

Family Law appears regularly on the MEE. It is not tested on the MBE, so many candidates underweight it. That is a mistake — when it shows up on the MEE, it is worth just as many points as any other essay.

Marriage

Requirements for a Valid Marriage

1. A marriage license issued by the state
2. A ceremony (solemnization) performed by an authorized officiant
3. Both parties must have capacity: legal age (18 in most states, or younger with parental/judicial consent), mental capacity to understand the nature of the marriage, and not currently married to someone else
4. Consent must be voluntary (no fraud, duress, or undue influence)

Common Law Marriage

Recognized in a minority of states. Requires: (1) capacity, (2) present agreement to be married, (3) cohabitation, and (4) holding out to the community as married. A common law marriage valid where created is recognized in all states.

Void vs. Voidable Marriages

Void: Invalid from inception, can be challenged by anyone at any time. Examples: bigamy, incest.

Voidable: Valid until annulled by one of the parties. Examples: underage marriage, fraud, duress, mental incapacity, impotence. Only the affected party can seek annulment, and ratification (continuing the marriage after the defect is removed) bars annulment.

Divorce

Grounds

Most jurisdictions recognize both fault and no-fault grounds.

No-fault: Irreconcilable differences, irretrievable breakdown of the marriage, or living separate and apart for a statutory period.

Fault: Adultery, cruelty, desertion, imprisonment, habitual intoxication, insanity.

The distinction matters for property division and alimony in some jurisdictions — fault may be considered as a factor.

Property Division

Community property states: All property acquired during the marriage is owned equally by both spouses, regardless of who earned it. Property acquired before the marriage, by gift, or by inheritance is separate property. At divorce, community property is divided equally (or equitably, depending on the state).

Equitable distribution states (majority): The court divides marital property equitably, which does not necessarily mean equally. Factors include: length of marriage, each spouse's economic circumstances, contributions to the marriage (including homemaking), age and health, earning capacity, and any marital misconduct.

Marital vs. separate property: Property acquired during the marriage through the efforts of either spouse is marital property. Property acquired before marriage, by gift, or by inheritance is separate. Commingling can convert separate property to marital property.

Alimony/Spousal Support

Courts consider: the requesting spouse's need, the other spouse's ability to pay, the standard of living during the marriage, the duration of the marriage, and each spouse's age, health, and earning capacity.

Types: temporary (during proceedings), rehabilitative (for a limited time to allow the spouse to become self-supporting), and permanent (rare, usually in long marriages where one spouse cannot become self-supporting).

Alimony generally terminates upon the recipient's remarriage or either party's death. Cohabitation with a new partner may also be grounds for modification or termination.

Child Custody

Best Interest of the Child Standard

The overriding standard in all custody decisions. Factors courts consider:

• The child's wishes (if of sufficient age and maturity)
• Each parent's wishes
• The child's relationship with each parent, siblings, and other significant persons
• The child's adjustment to home, school, and community
• The mental and physical health of all parties
• Each parent's willingness to facilitate the child's relationship with the other parent
• Any history of domestic violence or abuse

Types of Custody

Legal custody: The right to make major decisions about the child's upbringing (education, healthcare, religion). Can be sole or joint.

Physical custody: Where the child lives day-to-day. Can be sole (with visitation for the other parent) or joint/shared.

Modification of Custody

Custody orders can be modified upon a showing of a material change in circumstances affecting the child's best interest. The burden is on the party seeking modification.

Jurisdiction (UCCJEA)

The home state of the child (where the child lived for 6 consecutive months before the proceeding) has jurisdiction over custody matters. This prevents forum shopping.

Child Support

Both parents have a duty to support their children. Child support is calculated using state guidelines, typically based on: the parents' income, the number of children, and the custody arrangement.

Child support cannot be waived by the parents in a separation agreement because it belongs to the child. Courts can modify support upon a material change in circumstances (job loss, significant income increase, change in custody).

Child support generally terminates when the child reaches the age of majority (18 or 21, depending on the jurisdiction), becomes emancipated, or dies.

Prenuptial Agreements

Enforceable if: (1) in writing, (2) signed voluntarily, (3) with full and fair disclosure of assets, and (4) not unconscionable at the time of enforcement. Some jurisdictions also require each party to have had access to independent counsel.

A prenuptial agreement can address property division and alimony but generally cannot limit child support or custody rights.

Study Strategy

Family Law on the MEE rewards organized, issue-spotting essays. When you see a divorce fact pattern, work through the checklist: grounds for divorce, property classification and division, alimony, child custody, and child support. Address each one using IRAC. Do not skip any issue even if it seems minor — the graders are looking for comprehensive coverage.