How the Bar Exam Is Structured
The structure of the bar exam generally varies by jurisdiction. However, most states use some form of multiple choice test known as the Multistate Bar Examination ("MBE"). This test is administered on the second day of the 2-day national bar exam. The MBE tests the law on the subjects of civil procedure, constitutional law, contracts, criminal law, evidence, real property, and torts.
There are other tests that are typically given on the first day of the 2-day national bar exam. Generally, a portion called the Multistate Performance Test (MPT) is given. The MPT requires examinees to perform certain attorney tasks that a new attorney would perform in practice . Some jurisdictions, including Texas, also have an essay portion where they test your knowledge in local law.
As discussed above, the MBE, the essay portion, and the PMT are given on the 2-day or 3-day national bar exam day. Localized tests such as legal ethics and professional responsibility are typically given in the morning or afternoon. For example, in Texas, on the first day of the 3-day exam, you will take the Texas Civil Procedure exam in the morning, the PMT, including Texas Civil Procedure, and on the second day of the exam, you will take the MPT.
Does Family Law Appear on the Bar Exam?
Family law is a consistently tested subject on the bar exam. It appears as a separate essay question or as a portion of a multi-subject question. Child custody is a common subtopic, in which candidates may be asked to discuss the legal standard for child custody (the best interests of the child) and apply that standard to the facts. Child support may also be tested, often with the inclusion of topics like termination of parental rights and the Uniform Interstate Family Support Act (UIFSA).
Means of serving divorce and separation papers may be included in extra fact patterns. For example, in the July 1997 Florida bar exam, a non-custodial parent was found to have been properly served with divorce papers where the process server left the papers with a babysitter for the non-custodial parent’s child that also lived at the same residence, but this did not terminate the court’s jurisdiction over the child. In the July 2007 Hawaii bar exam, the state Supreme Court held that divorce papers were properly served where a resident was not actually the owner of a property but had keys to the business and used the address on a daily basis. The parties owed a $2,500 balance on the restaurant, and the process server’s attempts to reach the parties by any other means were apparently unsuccessful.
Family Law Topics on the Bar Exam
Divorce – questions about divorce can focus on the grounds of divorce, which vary by state, or statutory requirements for obtaining a divorce, such as the length of residency required before a party can file for divorce. Jurisdictions have also adopted the Uniform Statutory Change in Age of Majority. Under that statute, the age of majority is eighteen years in the District of Columbia; fourteen in Idaho and North Carolina, and fifteen in Alabama, Arkansas, Georgia, Mississippi, Montana, South Carolina, South Dakota, Tennessee, and Utah. In all other states, it is sixteen years.
Child custody – divorce questions can also focus on the jurisprudence of child custody determinations, often the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or the Parental Kidnaping Prevention Act. The primary purpose of the UCCJEA is to establish which state may make an initial child custody determination. Only one state can exercise jurisdiction over an initial custody determination. The UCCJEA also establishes minimum contact standards to determine whether a state court has jurisdiction over a child custody determination.
Child support – a jurisdiction’s ability to enforce a child support obligation is generally governed by the Uniform Interstate Family Support Act (UIFSA). UIFSA provides that a party may file a support enforcement action in any tribunal having personal jurisdiction over the absent parent or the child. Any tribunal outside the state may enforce (but not modify) a support order of the state of continuing exclusive jurisdiction as if it were a support order of the responding state.
Spousal support – a spousal support question should note whether current alimony law is governed by the common law, by modern statutory approaches, or by state guidelines. Historically, spousal support was the only term used to describe what is now commonly referred to as alimony. This basic concept, however, has since evolved into five different categories of support: temporary, rehabilitative, permanent, lump sum, and constructive.
Property division – many states use the concept of a marital estate to refer to the collection of property subject to equitable distribution at the time a marriage is dissolved. Depending upon the state, the relevant inquiry may be title-based, such as with a community property system, or will be a court’s evaluation of both property and non-property factors to determine the equitable division of a couple’s property.
Pre-nuptial agreements – marriage-based agreements are often separable from the divorce-based questions. A question about a pre-nuptial contractual agreement often attempts to get the student to focus on a few very specific provisions. Students should apply the right of contract principles to these types of questions, as well to the following specific issues:
Whether the agreement violates the Statute of Frauds, in terms of real property ownership.
Whether there was a breach of the covenant of good faith and fair dealing.
Whether there was full disclosure of all assets.
Whether there was specific enforcement of the valid provisions of the agreement.
How to Prepare for Family Law Questions
There are two main ways to prepare adequately for family law questions on the bar exam. First, make sure that you participate in a full-fledged commercial bar review course. By participating in a bar review course, you will at the very least be directed to where the substantive law is and receive sample questions that reflect the kind of questions you will see on the actual family law portion of the bar exam. You will most likely also be directed to where to find sample answers, model answers and past family law exam questions. The best way to approach the bar exam is to stratify your preparation by dividing it into three sections. The first section should detail the substantive law for each subject tested and determine what is of moment. The second section should include the full outline of your review subjects and where the resources are. The third section should include past bar exam questions and the model answers from the answers that are available to form a basis for studying and preparing for the bar exam .
Secondly, when it comes to family law, you need to spend the bulk of your time on the four matters of family law that are of real moment: divorce with real property issues, divorce without real property and child custody, child support and alimony. The fact of the matter is, portions of the law are the same in divorce and family law cases regarding child custody, child support and alimony. The only difference is how property is disposed of in a divorce and how the court must allocate the marital property and assets and debts and liabilities of the marriage. In child custody and alimony, the positions are fairly similar. The same thing can be said about child custody and child support. There are set factors that are considered in child custody, and child support for non-custodial parents are calculated in the same general manner. While the circumstances may vary from case to case, the general factors are the same. While all the past exams and all of the subjects may seem overwhelming, the past exams have generally consisted of a few very basic things, so mastering a few basic things will allow you to obtain a passing grade the overwhelming majority of the time.
Sources to Learn Family Law
With the growing popularity of online legal education, there are a number of resources available for those preparing for their bar exam who wish to study family law in greater detail. Many of the online courses teach the material through video lectures, and accommodate students’ schedules by allowing them to watch recordings of the lectures at their convenience. The typical course is broken down by subject area, and includes quizzes to test students’ comprehension of the material.
YouTube is another good resource for studying family law. Many law school professors have created free YouTube videos in which they lecture on family law topics. One potential downside of YouTube is that some of the older videos are now teaching statutes that have been amended or replaced. For example, older videos might not mention the Uniform Collaborative Law Act and the Uniform Family Law Arbitration Act, which were adopted in New Jersey in 2014.
The traditional textbook remains an invaluable resource for prepping study sessions and is often the best way to learn complicated practice-based information such as alimony and child support calculations and tax issues. The comprehensive nature of family law textbooks allows them to cover more topics than are typically tested on the bar exam.
A recent addition to the family law textbook library is ALI-CLE’s "Family Law in a Nutshell." Like most Nutshell textbooks, this resource is useful for studying for the bar exam because it touches on all of the primary topics, including divorce, equitable distribution, marital agreements, child custody, child support, adoption, incorporation by reference, the UCCJEA, UCCJEA, UIFSA, professional ethics, and appellate standards of review. It is similar in physical form to a Nutshell textbook, but it is actually published by The American Law Institute, the nonprofit of the National Conference of Commissioners on Uniform State Laws. This book has been updated to reflect the adoption by the family law bar of alternative dispute resolution, fetal tissue research, the electronic notary, estate taxes, and various improvements to adoption law.
The best way to prepare for the types of analytical questions that will be asked on the bar exam is to take practice exams. You can usually purchase booklets of practice exams directly from your law school. Practice exams are useful for thinking through hypothetical questions by applying the law, and by providing a general sense of the exam’s length and tone.
Study groups are another great way, in conjunction with textbooks and other materials, for focusing on specific areas of family law testing on the bar exam. Many bar exam candidates join study groups, where they break out into various subgroups, each tackling a different area of the law.
Finally, bar exam review courses provide a wealth of exam samples and model answers. A recent study by Karen A. Sloan found that "Family Law" is the most frequently tested subject on the Multistate Bar Exam, making up 3.9% of the questions. Many of the online bar courses provide sample answers to past questions, explanations of model answers, and even films of exam prep lectures.
Overall, there are a variety of resources available for bar exam candidates to help them prepare for the family law portion of the exam. Whether textbooks, practice exams, or study groups, the family law student can pick and choose the materials best suited to their learning style.
What to Do When Family Law Questions Appear on Exam Day
First, some general tips for family law exam days:
Practice answering essay-style questions within the time constraints.
Maximize your time on the essay portion of the exam. Pen and paper alarms give you a little extra time and help you get a perfect score—but your hand might fall off mid-exam.
Read the questions carefully. I can’t stress this one enough for testing family law. The professor will try to trick you, so take care to read all the facts and all of the law to go with it.
Fact patterns on the Texas exam are long by design, so they tend to get a little tricky in a few different ways. For example, there can be a lot of "clue words" in one fact pattern: In one scenario, the ex-wife, who has gotten remarried, says something about a "pre-nup," but the husband calls it a "prenuptial agreement." They both talk about "community property," "separate property," "premarital property," "contribution," and "estate . "
Does she want her community property? Or does she want to go back and divide property from that first marriage? If you don’t read carefully, you could give the wrong answer.
Another example is a charm not too commonly found on a trick exam: One fact pattern mentions a "community property state," while the other is in a "common property jurisdiction." Knowing that both are legal terms that basically mean the same thing helps you figure out exactly what state they’re in without having to look it up.
The spouse may have also been carrying on an affair with her high school sweetheart all those years. Is that relevant? Usually. Does a string of committed extramarital affairs qualify for a disproportionate division? Yes, with some exceptions.
There can be more than one question hidden in a single fact pattern, so make sure to answer all parts.