Welcome back to the Deep Dive, future legal scholars.
Today we're really cutting through the noise.
We want to bring you the essential knowledge you need.
Not just for law school exams, right, but more importantly, for
tackling the uniform bar examination.
Exactly. Our mission for this deep dive
is super focused, distilling those core principles, the
practical applications, and the strategic insights you really
need when those Mee and MBE questions hit your desk.
Think of it as well an accelerated guide helping you
understand how these critical concepts actually work in
practice. Today we're zeroing in on three
subjects, ones that pop up a lot on the bar exam, often
interconnected in, well, unexpected ways.
Uh huh. We're talking secured
transactions, UCC Article 9, then family law, and finally
trusts and estates. Right.
These are areas where getting a solid handle on the statutes,
the doctrines, and yeah, the exam strategies can really earn
you some serious points. So let's crack this open.
Let's unpack this. OK, let's kick things off with
secured transactions now. Article 9 of the UCC.
It can feel really technical, maybe even a little dry.
Sometimes it can seem that way on the surface.
Yeah, but don't let that fool you.
It's heavily tested, especially on the Mee and 9 state essays
too. If you ever wondered how lenders
protect their interests, this is it.
Absolutely. And here's where it gets really
interesting. At its core, a secured
transaction is just a commercial deal.
A debtor gives a creditor the secured party a special right, a
security interest in some personal property or fixtures.
To back up a loan usually. Mostly, yeah, a loan, credit
line, some obligation. What's fascinating here is this
gives the creditor real, enforceable rights to that
collateral if the debtor defaults.
Like taking it back? Exactly, Repossession, selling
it off, sometimes even just keeping it.
Article 9, which is pretty much everywhere in the US, sets the
rules, how these interests are created, protected from others,
and you know who wins when there's a fight.
It's all about balancing interests, debtor, creditor,
third parties. So before we even talk about
priority fights, the interest has to, well, exist legally.
That first step, we call it attachment.
Attachment OK. Think of it as the moment the
security interest becomes real, legally enforceable between the
debtor and the creditor. It's the foundation.
Without attachment, you don't really have a security interest,
legally speaking. Not foundational.
And Article 9 says you need three things, all three for
attachment to happen. OK, what are they?
First the secured party has to give value.
Now value is interpreted really broadly.
Any consideration that support a simple contract works.
So like the loan money itself? The loan, yeah, or extending
credit, a promise to lend later, even settling an old debt.
Courts don't care if it's a good deal, just if it's legally
sufficient value. It's that quid pro quo.
Makes sense. What's #2.
Second, the debtor must have rights in the collateral.
They don't need full ownership necessarily, but some legal
interest, a lease, a license, even just possession sometimes.
So they need something they can actually grant an interest in.
Precisely, and here's a key concept often tricky for
students after acquired property clauses.
Article 9 allows these, meaning the security interest can attach
not just to the collateral the debtor has now, but also to
similar stuff they get later. Think inventory financing.
The interest attaches to new stock as it comes in.
Super common, Super important. OK.
Value given debtor has rights. What's the third piece?
The third piece ties it all together.
You usually need either an authenticated security agreement
or the secured party needs possession or control of the
collateral. Authenticated meaning signed.
Signed, Yeah, or electronically agreed to by the debtor.
It needs to be in a record, like a written document or electronic
file. And crucially, it must describe
the collateral reasonably well. How specific does that
description need to be? Specific enough to identify it.
All inventory or all equipment usually works, but something
vague like all assets or all personal property is generally
not good enough in the security agreement.
It might work in a financing statement, but that's different.
We'll get to that. OK.
And the alternative is possession or control.
Right. If there's no written agreement,
the secured party having physical possession works for
things like promissory notes or tangible chattel paper.
For intangibles like bank accounts or stocks, you need
control. That means the secured party can
deal with the collateral without needing the debtors permission,
like through an account control agreement with the bank.
So just to clarify for everyone listening, attachment makes the
interest real between the debtor and creditor, but it doesn't
protect against everyone else yet, right?
That's perfection. That's exactly it.
Attachment is step one, enforceable against the debtor,
but against the rest of the world, other creditors, A
bankruptcy trustee, you need perfection.
The legal armor, you called it. Pretty much it's the public
notice. Without it, even with
attachment, you're vulnerable. Someone else could jump ahead of
you in line. Now before we get deeper into
perfection, let's talk collateral itself.
Article 9 has specific classifications and this is key.
It depends on the debtors intended use when the interest
attaches. Why does it matter so much?
Because the classification dictates how you perfect your
interest and how you enforce it. Examiners love testing this
distinction. OK, layout the categories for
us. We group tangible goods by the
debtors main use, consumer goods, personal, family,
household stuff, your car, TV, washing machine, inventory,
stuff held for sale or lease or used up in a service.
Think retail stock, raw materials for manufacturing,
equipment used in a business, machinery, office computers,
tools and farm products, crops, livestock, things from farming.
Specific rules apply there. Then there are intangibles and
quasi intangibles. Accounts.
Rights to payment like invoices. Remember even selling accounts
falls under Article 9. Important point.
Chattel paper records showing both a debt and a security
interest in goods like car financing agreements, deposit
accounts, bank accounts usually perfected by control
instruments, negotiable items like notes or drafts, investment
property, stocks, bonds, brokerage accounts and the catch
all general intangibles. Like patents or goodwill?
Exactly. Intellectual property licenses
payment rights that don't fit elsewhere.
If it's not one of the others, it's probably a general
intangible. That's a lot of classifications.
I'm wondering though, what about those Gray areas like, say, a
small business owner using a laptop for both work and
personal browsing? Is it equipment or a consumer
good? How do you figure that out?
That's an excellent question, and it really shows why
classification is critical. The rule is predominant use at
the time of attachment. Predominant use.
Right. If it's mainly for business,
it's equipment, mainly personal, it's consumer goods.
Yes, sometimes it takes a factual look and that
classification matters a lot for perfection and enforcement.
So on an exam, you really need to read those facts about how
the collateral is used very carefully.
OK, so moving on to perfection, this is the step that Shields
the secured party's rights from third parties.
Without it, you lose out to other lean holders, bankruptcy
trustees, maybe even some buyers.
Perfection puts the world on notice.
How do you do that? How do you perfect?
Several ways. The most common and versatile is
filing a financing statement. The UCC one form.
The public notice. Exactly.
It needs the debtors legal name. Watch out for trade names or
small errors. That's a classic bar exam trap.
It also needs the secured party's name and a description
of the collateral sufficient to alert others.
Usually filed centrally like with the Secretary of State, but
for fixtures or timber you might file locally in land records.
How long does that filing last? It's effective for five years.
You can renew it by filing a continuation statement in the
last six months before it expires.
If you let it lapse, you lose perfection, potentially your
priority. Big problem.
Can you file it early? Yes, that's a huge benefit.
You can prefile the UCC 1 even before the security interest
attaches. This locks in your priority date
early, giving notice to other potential lenders.
Very strategic. OK.
Filing is one way. What else?
Possession or control For some assets like negotiable
instruments or stock certificates, the secured party
having physical possession perfects the interest.
Makes sense. You hold it, people know you
have a claim. Right.
And for things like deposit accounts or electronic chattel
paper, you need control. The secured party needs the
power to dispose of it without the debtors help like through
that account control agreement we mentioned.
OK. Filing, possession control,
anything else? Yep, automatic perfection.
Sometimes the law just perfects it for you automatically when it
attaches. That sounds nice.
When does that happen? The classic example is a
purchase money, security interest, APMSI and consumer
goods. When a store finances your new
fridge, their security interest is automatically perfected.
OK, big exception usually doesn't apply to motor vehicles.
Those typically need a notation on the certificate of title for
perfection. Always remember that car
exception. Good tip any others?
There's also temporary perfection, short term
protection in specific situations.
Like if collateral moves to another state you usually get a
four month grace period to re perfect there, or if collateral
is sold you get 20 days of perfection in the identifiable
proceeds. It gives the secured party a
window to take action. Now we get to the real legal
chess game. Priority rules.
OK, multiple claims on the same collateral.
Who gets paid first? This is huge on the bar exam,
isn't it? Absolutely huge.
This is where attachment and perfection really show their
teeth. These rules aim for fairness and
predictability. The general rule for competing
perfected interests is first to file or perfect.
So whoever filed that UCC one first or perfected by possession
first wins. Usually yes, even if their
interests attached later, filing early can secure that priority
spot. It's a critical point.
OK, what if one is perfected and the other isn't?
Simple perfected beats unperfected every time.
And as both are unperfected. Then it's the first to attach
whoever's interest became legally real.
First wins between those two now purchase money security
interests. PMS is get special treatment
because they help debtors get new stuff for a PMSI and
consumer goods we said it's automatically perfected and it
generally beats even earlier filed non PMSI interests.
That's a big exception to 1st to file.
OK. What about PMS is and other
things like inventory? Stricter rules there for
inventory or livestock, the PMSI holder must perfect before the
debtor gets the goods, and they have to send advance written
notice to any earlier perfected creditors with an interest in
the same type of collateral. Notice is key there.
Absolutely no 20 day grace period like with other
collateral types for perfection either you have to notify before
delivery. This stops secret liens on
rotating inventory for PMS, IS and equipment.
Though you do get a 20 day grace period after the debtor gets
possession to perfect and that perfection relates back to the
attachment date. Very powerful.
What if you have two PMS? Is competing like the seller
finance part and a bank finance part?
Good question. If both a third party lender and
the seller provide PMSI financing for the same
collateral and both perfect properly within the grace period
if applicable, Article 9 gives priority to the seller.
The idea is sellers aren't usually professional lenders, so
they get a slight edge. Interesting policy.
What about proceeds if the collateral is sold?
A perfected security interest generally extends to
identifiable proceeds. Traceability is key.
If cash proceeds get mixed in a bank account, courts often use
the lowest intermediate balance rule to figure out how much is
still identifiable. OK, now what about buyers?
Can a buyer ever take collateral free of a security interest?
Yes, absolutely. The big one is the buyer.
In the ordinary course of business, BIOCB A/B IOCB takes
free of a security interest created by their seller.
Even if it's perfected and the buyer knows about it, as long as
they don't know the sale violates the security agreement.
So buying ATV from an electronic store?
Exactly. You buy in good faith from a
seller who normally sells those goods in the ordinary course.
You don't have to worry about the stores lender having a lien
on your TV. This rule is vital for commerce
to flow smoothly. Imagine the alternative.
Yeah, that would grind things to all.
What about lien creditors or bankruptcy?
Liena Creditors and bankruptcy trustees.
A perfected security interest beats unperfected interests and
these guys. A bankruptcy trustee acts like a
hypothetical lien creditor who gets their lien on the date of
bankruptcy. If you're not perfected when
bankruptcy hits, the trustee can often avoid your interest,
making you just an unsecured creditor.
Not good. And if your perfection lapses,
you can lose priority too. And fixtures, things attached to
buildings. Visitors are tricky because they
involve real estate law too. You need a special fixture
filing a UCC 1 filed in the local land records to get
priority over competing real estate interests like mortgages.
A PMSI in fixtures can sometimes beat a prior mortgage if filed
within 20 days of the goods becoming fixtures.
But physically removing fixtures upon default is tough.
Usually the secured party gets paid from the foreclosure sale
proceeds. OK, one last one.
Commingled goods like grain in a silo.
Right, commingled goods. If your collateral gets mixed
with other similar goods so it loses its identity, the security
interest continues in the resulting mass or product,
usually proportionally. So you've done all the work,
attached, perfected, got priority, but then the the worst
happens, the debtor defaults. They don't pay.
This seems like where those ME hypotheticals often end up with
a struggling business. Exactly.
When default occurs, Article 9 kicks in with the secured
party's remedies. First, their self help
repossession. You can just go take the
collateral back, but only if you can do it without a breach of
the peace. No force, no threats, no
breaking down doors, no creating a public disturbance.
That line is critical and often tested.
Any breach makes the repo wrongful.
OK, assuming a peaceful repo, what then?
Then the secure party can dispose of the collateral, sell
it, lease it, license it. But the key rule is that every
aspect of the disposition must be commercially reasonable.
Method, manner, time, place, terms, everything.
It's a high standard, judged objectively.
Do they just decide to keep it instead of selling?
Sometimes that's called strict foreclosure.
They keep the collateral in full or sometimes partial if agreed,
satisfaction of the debt, but they need the debtors consent,
usually obtained by sending notice.
If the debtor or a certain other parties objects within 20 days,
the creditor must sell it. What if the sale doesn't cover
the whole debt? Then the secured party can
usually sue the debtor for the remaining amount of deficiency
judgment. However, if the sale wasn't
commercially reasonable, that deficiency might be reduced or
even eliminated entirely. Big consequences for messing up
the sale. And notice is absolutely
crucial. Before disposing of the
collateral, the secured party must send reasonable notice to
the debtor, any guarantors, and any other secured parties who
have filed or are known for consumer goods.
The notice requirements are even more specific about content.
Failure to give proper notice that can also kill your
deficiency claim and lead to damages.
Always check the notice facts on an exam.
Do debtors have any rights after default?
Yes, several important ones. They have the right to redeem
the collateral before it's disposed of or accepted in
strict foreclosure. They just need to pay the entire
secured obligation plus the creditors reasonable expenses.
They also have the right to object to strict foreclosure and
force a sale. And if the secured party
violates any Article 9 rules, bad repo, unreasonable sale, no
notice, the debtor has a right to damages.
That makes sense, balancing creditor rights with debtor
protections. That's the goal of Article 9's
enforcement provisions, fairness and predictability, even when
things go wrong. That's a fantastic detailed look
at secure transactions. OK, from the sometimes intricate
world of commercial finance. Let's pivot.
We're going to dive into an area that touches everyone
personally. Family law, another Mee
cornerstone, right? And it really shows how law
shapes our most basic relationships.
It absolutely is. Family law is foundational.
It's governed by state statutes, sure, but also deeply influenced
by constitutional principles. Marriage, divorce, parent child
relationships. These aren't just private
contracts. They create a public civil
status with significant legal rights and duties.
So where do we start with getting married itself?
Makes sense? Let's talk marriage formation
and validity. To have legally valid marriage
in the US, you need to meet both substantive requirements, who
can marry and procedural ones. How you do it?
OK, substantive first, what are the capacity rules?
First, legal age, usually 18, but states have exceptions for
minors, often requiring parental consent or a judge's approval.
Maybe for pregnancy or emancipation.
Varies a bit state to state, right?
Second, mental competence. Both parties need to understand
what marriage is, its rights and duties.
If someone is severe, really mentally ill, intoxicated or
disabled at the time of the ceremony to the point they don't
understand, the marriage might be invalid.
Third, non consanguinity. You can't marry close blood
relatives, parents, children, siblings.
Rules on 1st cousins differ. So that's a potential
jurisdictional twist. And you can only be married to
one person at a time. Exactly.
Monogamy is universal bigamy. Marrying someone while already
married makes the second marriage void from the start,
though there's often a presumption the most recent
marriage is valid, so the challenger has to prove the
prior 1 still exists. OK, those are The Who.
What about the how the procedural stuff?
Usually you need a marriage license.
States issue these often with waiting periods before the
ceremony and expiration dates, then solemnization.
The ceremony has to be performed by someone, authorized judge,
clergy, etcetera. Some states like Colorado even
allow self solemnization and some states might require
witnesses and official recording of a marriage certificate.
Critically underlying all this is voluntariness and consent.
It has to be freely given. If consent is based on fraud,
duress or coercion, the marriage might be voidable.
And the Constitution protects the right to marry.
It does. It's a fundamental right.
Think Loving V Virginia striking down interracial marriage bans
and Oprah Valvey Hodges guaranteeing same sex marriage
rights nationwide. States regulate marriage heavily
because it affects property, kids, taxes, but they can't
infringe on those fundamental constitutional rights.
That's a lot packed into just getting married now.
You mentioned jurisdictional twists.
What about recognizing marriages from other states?
That seems like a classic exam issue.
What's the rule there? That's a great point, and yes,
it's frequently tested. The general rule comes from the
full faith and Credit clause of the Constitution.
If a marriage is valid where it was performed, other states
generally must recognize it. Even if that state wouldn't have
allowed that marriage under its own laws.
Generally, yes. But there's a big exception.
The strong public policy exception.
If recognizing the marriage would violate A deeply held
public policy of the second state, think prohibitions
against bigamy or incest, that state might refuse recognition.
It's a high bar, but it exists. That's the tension examiners
love to explore. Related to that is common law
marriage. Most states have abolished it,
but a handful still recognize. It and if it's validly formed in
one of those states. Then other states generally have
to recognize it under full faith and credit, just like a
ceremonial marriage. OK, So what does it take to form
a common law marriage in those states that allow?
It the specifics vary slightly, but generally you need a few key
elements. First, capacity.
Same rules as ceremonial marriage, age, not already
married, etcetera. Second, a present intent to be
married. They have to agree they're
married now, not just plan to marry someday.
Present intent crucial. Very third, cohabitation.
They have to live together like a married couple.
No specific time required usually, but they need to live
together. And 4th, probably the most
critical element. Holding out to the public that
they are married. How do they do that?
Using the same last name, calling each other husband and
wife, filing joint tax returns, introducing each other as
spouses, joint bank accounts or property deeds.
It's about their public reputation.
This is what distinguishes it from just living together.
Which states still recognize this?
Places like Colorado, Iowa, Kansas, Montana, South Carolina,
Texas, Utah with a court order and DC.
Some others might recognize ones formed before a certain date.
And remember, a valid common law marriage has all the same legal
consequences, property rights, support inheritance and needs a
formal divorce to end. Proving it sounds tough.
It is. The burden is on the person
claiming it, usually by clear and convincing evidence.
Testimony, documents, how they acted.
Socially, it all matters. This is definitely a classic
gotcha on the bar exam. Always look for facts supporting
or undermining that holding out and mutual intent.
Those are the keys. You nailed it.
Another absolutely critical distinction, especially for
annulments in sorting out rights is between void and voidable
marriages. Getting this wrong can change
the outcome dramatically. OK, break it down for us.
Void first. Avoid marriage is invalid from
the absolute beginning AB anishio, as lawyers say it never
had any legal effect. Think of things like bigamy or
incest. So it's like it never happened
legally. Exactly.
And because it's void, anyone with an interest, either spouse,
heirs, the state can challenge it at any time, even after
death. No formal court order annulment
is technically needed, though getting a declaratory judgement
is smart for clarity. And importantly, modern laws
usually say kids born from a void marriage are still
considered legitimate. OK, that's void.
What about voidable? Avoidable marriage is different.
It's considered legally valid until a court steps in and
annuls. It so requires court action to
undo. Yes, and critically, only the
party whose consent was defected can seek the annulment.
Grounds for voidable marriage typically involve problems with
consent at the time of the ceremony.
Things like lack of mental capacity may be due to temporary
intoxication or illness, fraud going to the essence of the
marriage. What kind of fraud counts?
Not just any lie, it has to be about something fundamental,
like secretly being unable or unwilling to have children,
hiding a serious criminal past, maybe lying about religious
beliefs if that was central, or having no intention to live
together as spouses. Also duress or coercion or
incurable impotence that the other spouse didn't know about.
And unlike void marriages, these can be fixed.
Sort of. They can be ratified.
If the innocent spouse finds out about the problem, say the
fraud, but continues to freely live with the other spouse, they
might lose the right to annulment.
They've effectively accepted the marriage, warts and all, and
third parties generally can't challenge avoidable marriage.
What about someone who married in good faith but the marriage
turns out to be void like due to unknown bigamy?
Are they just out of luck? Not necessarily.
Many states recognize the putative spouse doctrine.
If someone entered the marriage in good faith, truly believing
it was valid, they might still be granted some marital rights,
like rights to property acquired during the relationship or maybe
support, even though the marriage itself is declared
void. It's an equitable protection.
That's a crucial distinction. OK, thinking about exams, what's
the single most common mistake students make here?
Confusing. Which is which?
I think the biggest mistake is confusing who can challenge the
marriage and when. Remember void Anyone, anytime,
never really existed. Voidable.
Only the injured party must act before ratification, valid until
annulled. Nailing that difference in
standing and the ratification possibility is key.
So assuming a marriage was validly formed, eventually it
might end. Let's talk divorce and legal
separation. Divorce or dissolution legally
terminates the marriage. And states have different ways
to get there fault versus no fault.
Exactly. Today, no fault divorce is the
standard everywhere, though the exact grounds vary.
You'll see terms like irreconcilable differences,
irretrievable breakdown, or incompatibility.
Some states might require the spouses to live separately for a
period, maybe six months or a year before the divorce is
final. Florida, for instance, just
requires one party to state the marriage is irretrievably
broken. The court doesn't ask why or who
did what. But fault grounds still exist
sometimes. They do in many states, even if
they're used less often. Fault based divorce might be
sought on grounds like adultery, cruelty, physical or mental
desertion or abandonment, felony conviction and imprisonment,
substance abuse, or sometimes incurable mental illness.
Does proving fault actually change anything if no fault is
available? It can in some states.
Proving fault might affect alimony awards, maybe the guilty
spouse gets less or none. Or it could slightly tip the
scales and property division. It depends heavily on the
specific states laws and there are defenses to fault.
Grounds like condemnation, forgiveness, recrimination, both
spouses are at fault, collusion, faking the grounds or
connivance. One spouse encouraged the
other's bad behavior. OK.
And what's legal separation then?
How's that different from divorce?
Legal separation is a formal court process where the spouses
live apart and the court issues orders about things like
custody, support and property, but they remain legally married.
Why would someone do that instead of divorce?
Various reasons, maybe religious beliefs or practical things like
maintaining health insurance coverage under 1 spouses plan or
preserving inheritance rights. Sometimes it's a step towards
divorce or required before divorce in some places.
But the key is the marriage itself isn't terminated.
Got it. So whether it's divorce or
separation, the court has to deal with the big issues.
Property support kids. Exactly.
Equitable distribution or Community property division?
Spousal support, alimony, child custody and visitation and child
support. Those are the core financial and
parental consequences. Okay, for our listeners tackling
the Mee, what's 1 crucial timing clue or piece of misconduct
evidence they should always look for in a fact pattern about
divorce, something that often changes the analysis?
Great question. Always, always look for any
mention of a separation agreement the parties already
made. Its terms might control or at
least heavily influence the outcome.
Also watch for facts showing the parties reconciled or cohabited
after an alleged fault ground. That could be condemnation,
wiping out the fault claim and one more significant spending,
or transferring assets right before or during the separation.
That screams wasteful dissipation and can definitely
impact how property is divided, even in a no fault context.
Building right on that division of property upon divorce is
huge. The approach depends on whether
you're in a Community property state or an equitable
distribution state. Community property that's like
California, Texas. Right Arizona, Idaho, Louisiana,
Nevada, New Mexico, Washington, Wisconsin too in these spirits.
The basic idea is that property acquired during the marriage
through either spouses efforts is owned 5050 wages, things
bought with wages, retirement earned during marriage, it's
split equally. Property owned before marriage
or received during marriage by individual gift or inheritance
is usually separate property and isn't divided.
OK. And the other system equitable
distribution. That's what most states use.
Equitable distribution means the court divides marital property
fairly, which doesn't always mean equally 5050.
So what's the first step in either system?
The absolute first step is always to identify and classify
the property. What is marital property or
Community property and what is separate property?
Marital property is generally anything acquired by either
spouse from the date of marriage until a cut off date, like
separation or divorce filing. Separate property is premarital
assets, gifts to one spouse, inheritances to one spouse.
The separate property can become marital right.
It can through commingling or transmutation.
Commingling is when separate property gets mixed up with
marital property so you can't trace it anymore.
Like putting inherited money separate into a joint bank
account used for household expenses.
Marital it might lose its separate character.
Transmutation is when there's an intent to change separate
property into marital property. Like using separate funds to buy
a house titled in both spouses names.
Always look for those facts. OK, so once property is
classified, how does the court divided in an equitable
distribution state? If not 5050, then what?
They look at a bunch of factors, things like the length of the
marriage, each spouse's age and health, their occupations and
income potential, their contributions to acquiring the
property, including non economic contributions like being a
homemaker, the needs of each spouse, whether one spouse
wasted assets, maybe fault in the divorce in some states, tax
consequences. The list can be long.
The goal is fairness based on the specific circumstances.
What about debts? Debts acquired during the
marriage are also usually classified as marital and
divided equitably considering who incurred them and for what
purpose. Student loans are often a tricky
issue. And valuing assets like a
business or pension. That can be complex.
Business interests often need expert valuation, looking at
things like goodwill and distinguishing appreciation due
to marital efforts versus passive market growth.
Pensions and retirement accounts earned during the marriage are
definitely marital. Property courts use things like
qualified domestic relations orders QDROS to divide them
without triggering taxes or penalties.
Personal injury awards might be partly marital for lost wages
during marriage, medical bills paid with marital funds, and
partly separate for pain and suffering.
That's a really thorough breakdown.
So for me, Prep clearly identify marital versus separate, know
your state system, Community property or equitable
distribution, analyze commingling, transmutation and
apply those equitable factors. That seems like the winning
strategy. Couldn't agree more.
That structured approach is key. Now.
Closely related to property division is spousal support or
alimony. Financial help after the
divorce. Exactly financial assistance
from one spouse to the other, either during the divorce
process or after. The main idea is to lessen the
economic impact of divorce, especially if one spouse was
financially dependent or gave up career opportunities for the
marriage. It's about fairness and trying
to maintain a semblance of the marital standard of living, at
least for a time. Are there different kinds of
alimony? Yes, courts usually have broad
discretion and can award different types based on the
situation. There's temporary alimony, also
called pendente elite, paid during the divorce proceedings.
Rehabilitative alimony is very common, designed to help a
spouse get education or training to become self supporting.
Usually has a specific goal and duration.
Like paying for nursing school you mentioned.
Precisely. Then there's permanent alimony,
less common now, usually reserved for long marriages
where one spouse is unlikely to ever become self supporting due
to age or health reimbursement. Alimony is kind of like paying
back a spouse for supporting the other through school or career
development. And sometimes courts award a
lump sum alimony, a fixed amount paid all at once or in
installments. What factors do courts look at
when deciding whether to award alimony, and how much, and for
how long? Again, it's a multi factor
analysis similar to property division but focused on need and
ability to pay. Key factors include duration of
the marriage, standard of living during the marriage, age and
health of both spouses, their financial resources including
the property division and outcome, earning capacities,
time needed for education, training, contributions to the
marriage, economic and non economic, and in some states
marital misconduct can play a role.
Can alimony be changed later? Generally yes, unless the
party's agreed otherwise. It's usually modifiable if
there's a substantial change in circumstances for either party,
like a big change in income, job loss, serious illness and
alimony. Typically terminates upon the
recipient spouses remarriage and sometimes upon their
cohabitation depending on state law or upon the death of either
party. If we connect this to the bigger
picture, you see why courts need this flexibility.
They're trying to achieve economic justice and very
individualized situations post divorce.
OK, we've covered the complexities of forming and
ending relationships and dividing assets.
Let's shift gears one more time to trusts and estates.
This often gets tested together with wills or decedents estates
on the Mee right? And it's all about managing
wealth during life and after death.
Absolutely, and mastery here really demands understanding the
legal rules, the policies behind them, and those sometimes
finicky formalities that can make or break an entire estate
plan. It's technical, but crucial.
So let's start with the basics. What makes a trust valid in the
1st place? What are the essential
ingredients? Under the Uniform Trust code
UTC, which most states follow, you generally need several core
elements. First, a trustee, someone
appointed to manage the trust and its duties.
And the trustee needs active duties.
They can't just be a placeholder.
Also, if the only trustee is also the only beneficiary, the
trust usually fails because of the merger doctrine.
The legal and equitable titles merge.
OK. A trustee with duties.
What else? 2nd, a beneficiary.
The person or people who benefit.
They need to be definite or ascertainable, meaning you can
figure out who they are now or in the future.
Are there exceptions? Yes, Charitable Trusts are a big
one. They benefit a large indefinite
group for a charitable purpose like Cancer Research or helping
the poor in city X. Also the UTC allows trusts for
the care of animals or for other specific non charitable
purposes, though usually with time limits.
Third, trust property, the res or corpus.
There has to be some specific identifiable property put into
the trust. It can be a tiny amount, even
just a dollar to start. It doesn't have to be
transferred right away, but the property must be clearly
identified. Got it.
Trustee, beneficiary property. 4th The settler, the person
creating the trust, must have the present intent to create a
trust and the mental capacity to do so.
They have to intend for the trust relationship to arise now,
not just sometime in the future. And like contracts or wills, a
trust created by fraud, duress or undue influence is void.
Most trusts are written, but oral trusts for personal
property are sometimes recognized, though proving their
terms requires clear and convincing evidence.
Very tough. OK, intent and capacity.
Anything else? Finally, the trust must have a
lawful purpose that's possible to achieve.
It can't violate public policy. For example, a trust designed to
encourage crime or one that unreasonably restricts marriage
or encourages divorce would be invalid or just a totally
frivolous purpose with no real benefit.
So what does this all mean? If any of these core pieces are
missing? No real trustee duties, no clear
beneficiary, no property, no present intent, unlawful
purpose. The whole structure might just
collapse. That's exactly right.
If a trust fails for lacking an essential element, the property
usually goes back to the settler or their estate, or maybe to
whoever would get the residue of their estate.
OK, so assuming the trust is validly created, the duties of
the trustee become absolutely central.
These are serious fiduciary obligations.
What's the main one? There are several key ones.
A big one is the duty of prudent administration.
This encompasses the duty of care and the prudent investor
rule. Trustees have to manage the
trust assets as a prudent person would, using reasonable care,
skill and caution. How does that apply to
investments? Under the Uniform Prudent
Investor Act, UPIA, they must invest and manage assets like a
prudent investor would, considering the trust, specific
goals, terms, risk tolerance and overall circumstances.
Critically, their performance is judged on the whole portfolio,
not just whether one stock went down.
Modern portfolio theory. Does that mean they have to
diversify? Generally, yes.
Diversification is usually required unless there are
special circumstances Making it imprudent, like maybe holding a
concentrated position in a family business is central to
the trust's purpose. They also have a duty of
impartiality. They can't favor income
beneficiaries over remainder beneficiaries, where vice versa,
unless the trust says otherwise. And they can delegate functions
like investment management, but they have to choose the agent
prudently, set the scope and monitor them.
OK, prudent management. What else is fundamental?
The duty of loyalty. This might be the most
fundamental duty. The trustee must administer the
trust solely in the interest of the beneficiaries.
No conflicts of interest allowed.
What does that mean in practice? Self dealing.
Exactly the no further inquiry rule generally applies to self
dealing transactions. If a trustee buys trust property
for themselves or sells their own property to the trust, the
transaction is presumed improper and voidable by the
beneficiaries, even if the trustee thought it was fair or
paid market value. The conflict itself taints the
deal. So they can't personally profit,
not from their position as trustee beyond reasonable
compensation. This duty extends to
transactions with their spouse, close relatives, business
associates. It's very strict.
There are some limited exceptions, especially for
corporate trustees dealing with their own mutual funds if
disclosed. But the core principle is
undivided loyalty. They also have to be impartial
among multiple beneficiaries. Makes sense?
Any other major duties? Yes, the duty to keep records
and report. Trustees have to keep
beneficiaries reasonably informed about the trust and its
administration. They need to provide important
information like a copy of the trust document or notice if the
trustee changes. They must keep accurate records
and very importantly, keep trust property separate from their own
personal property. No commingling funds.
Who gets these reports? Under the UTC, qualified
beneficiaries, usually current beneficiaries and those next in
line, have a right to request and receive reports
periodically. Like annual accountings.
This is a key transparency measure.
It sounds like these duties really lock things down for the
beneficiaries protection, but this raises an important
question. How do these duties work when
the trustee has really broad discretionary powers, like sole
discretion over distributions in a discretionary trust?
Does that mean they can do anything?
That's a fantastic point, and the answer is no.
Even with the broadest discretion granted in the trust
document, the UTC and common law are clear.
The trustee must still act in good faith and in accordance
with the terms and purposes of the trust and the interests of
the beneficiaries. Discretion is never absolute.
They can't act dishonestly or arbitrarily or contrary to the
settlers intent. Even if the trust language seems
very broad, their fiduciary duties always provide an outer
boundary. OK, that's reassuring.
For beneficiaries now, can trusts be changed or ended
early? Let's talk revocability and
termination. Good topic.
First, under the UTC there's a modern presumption inter vivos
trusts. Trusts created during the
settlers life are presumed to be revocable unless the trust
document explicitly says otherwise.
So the default is that the seller can change their mind.
Yes, a revocable trust can be amended or terminated by the
settler at any time during their life.
Easy enough. What about your revocable
trusts? Can they ever be changed or
ended? Yes, but it's more complicated.
The UTC provides ways if the settler and all beneficiaries
agree, they can go to court and get the trust modified or
terminated even if it goes against a stated purpose of the
trust. What if the settler is deceased
or doesn't agree? Then, if all the beneficiaries
consent, they can still petition the court.
The court can terminate the trust if continuing it is not
necessary to achieve any material purpose of the trust,
or the court can modify it if the modification isn't
inconsistent with a material purpose.
This material purpose doctrine, sometimes called the Claflin
doctrine, is key. If ending the trust early would
defeat a key goal of the settler, like staggering Caymans
to a spendthrift beneficiary, the court likely won't allow it.
Getting consent from all beneficiaries sounds hard,
especially with minors or unborn heirs.
It can be, but the UTC allows for consent through legal
representatives like guardians, or through virtual
representation where someone with a similar interest can
represent more remote beneficiaries.
OK. What about Charitable Trusts if
their purpose becomes impossible?
That's where the spare Crest doctrine comes in.
If a charitable trust specific purpose becomes unlawful,
impractical, or impossible, and the settler had a general
charitable intent, the court can modify the trust to apply the
property to another charitable purpose that is as near as
possible to the original 1. It saves the trust from failing.
And what if a trust just becomes too small to bother with?
The UTC addresses that too with termination of uneconomical
trusts. If the trust value drops below a
certain threshold, The UTC suggests $50,000, but states
vary, making administration costs unreasonable.
The trustee can terminate it after notifying the qualified
beneficiaries. A court can also order
termination if it's uneconomical, regardless of the
amount. The funds are then usually
distributed to the beneficiaries outright.
So for anyone studying for the Mee, distinguishing between
revocable and irrevocable trusts and really understanding those
conditions for modification or termination, especially that
material purpose test for beneficiary consent is
absolutely critical. Couldn't agree more.
Those nuances are frequently tested and just to round out our
trust discussion, let's quickly hit some common types of trusts
and vocabulary. Good idea.
A pour over will is simply a will that leaves some or all
assets to a pre-existing trust valid if the trust exists or is
created concurrently. A discretionary trust gives a
trustee sole discretion over distributions.
Beneficiaries can't force payments, and generally neither
can their creditors, with exceptions like child support.
A support trust directs the trustee to pay what's necessary
for the beneficiary support. The standard of support depends
on the trust terms and circumstances.
What about spendthrift trusts? Those seem common.
Very A spendthrift trust includes a clause preventing the
beneficiary from transferring their interest and preventing
most creditors from reaching it before it's distributed.
But again, exceptions exist for claims like child support,
alimony, sometimes government claims or suppliers of
necessities. A charitable trust is for a
charitable purpose, benefiting the public or a segment of it.
Remember, as seeing special needs trusts are designed to
supplement, not replace, government benefits for disabled
individuals. Blind trusts are used to avoid
conflicts of interest, often for politicians, and a testamentary
trust is simply one created within a will, taking effect
only after the testator dies and the will is probated and the key
players Settler creates it, benefits, trustee manages it.
Knowing the rules is step one. All right, we have navigated
some seriously complex legal territory, secure transactions,
family law, trusts in the states.
But knowing the rules is only half the battle, right?
The bar exam demands you apply that knowledge under intense
pressure. So what does this all mean for
your journey to pass the bar? Let's shift the strategy.
Absolutely. Knowing the law is necessary,
but not sufficient. Take the Barbary simulated MBE
for instance. Many consider it the single most
important prep activity. Why is that?
Because it forces you to experience the mental and
physical demands of the real thing.
Six hours, 200 questions. It shows you what that feels
like. Ideally you prepare for it like
the real exam review, maybe flash cards.
Get decent sleep. And the score report afterwards.
Incredibly valuable, The Past Predictor report breaks down
your performance by topic and subtopic, showing your
percentile rank against others. It tells you exactly where your
strengths and weaknesses lie. It's your personalized
diagnostic tool. How should someone approach
taking it? Treat it like the real deal.
Same timing rules for your jurisdiction.
Pacing is vital. Don't rush but don't get bogged
down. Try to mirror the real exams
breaks. Aim for maybe a small 5 minute
buffer procession. Experiencing that fatigue helps
you manage it on exam day. What if the score isn't great?
First, don't panic. Lots of people score lower than
they hope on the simulation and still pass the bar.
It's a diagnostic, not a prediction carved in stone.
Use it to refocus your efforts. Don't stop studying.
Shift from just passively watching lectures to actively
doing problems and practice essays.
Balance acquiring knowledge, retaining it, and applying it.
Use the report to see where you need more work.
Is it understanding the rule or applying it to facts?
And stay positive. It's a marathon.
Now for the MBE questions themselves, those 200 multiple
choice monsters, strategy is everything.
Here's a solid approach. Step one, Read the call of the
question first. Before the fact.
Better. Absolutely.
It tells you what legal issue is being tested and what specific
question you need to answer. It focuses your reading of the
facts, helps you filter out distractions, gives you that
critical framework. OK, read the call first.
Then carefully analyze all the facts in the paragraph.
Every single word is deliberate. There are no fluff facts on the
MBE. They're testing nuances,
exceptions, conditions. Missing one detail can lead you
straight to the wrong strong answer.
Pay close attention. Next, systematically eliminate
clearly wrong answers. Look for options that misstate
the law, rely on facts not given, apply law from the wrong
subject, or are just illogical. Often you can confidently
knockout one or two distractors. Increasing your odds.
Exactly. Even getting it down to two
choices, double s your chance. Finally, choose the best rule
based answer. Out of the remaining options,
pick the one that most precisely applies the correct legal rule
to the specific facts presented. Don't go with what feels right
or seems fair. It has to be legally correct
based on the rules you've learned.
Rigorous application. Any tips for practicing this?
Definitely due timed practice sets maybe 25 questions per
subject. And when you review, don't just
look at the right answer. Read the explanations for all
the options, correct and incorrect.
Understand why the right answer is right and why the wrong
answers are wrong. This helps you spot your
patterns of error. Are you missing the rule or
misreading the facts? Now let's talk M EE SA strategy
6 essays, 30 minutes each. They're testing issue spotting
and your ability to analyze applying law to facts.
IRD is key here. IRD is your best friend.
Issue rule, application, conclusion.
Use it consistently for every major issue.
Clearly state the issue, maybe use a heading.
State the relevant legal rules. Then the most important part,
the application or analysis. This is where you connect the
specific facts from the prompt to the elements of the rule.
Use transition words like because, since here.
Therefore show the greater how the rule applies to these facts.
Don't just state conclusions. Finally, a concise conclusion
for each issue. Using headings helps.
Definitely use headings for major issues.
It organizes your answer for the greater and for yourself helps
ensure you hit all parts of the question.
You also need to balance depth and brevity.
Go into detail on the major contested issues.
Acknowledge minor issues more briefly.
Manage your 30 minutes per essay carefully.
Other quick pips for Emmy success.
Memorize key frameworks, negligence elements, contract
formation steps. Use the facts given precisely.
Do not make up facts or hypotheticals.
Avoid conclusory statements. Always explain why.
For example, if it's a UCC battle of the Foams, don't just
say a contract was formed. Explain how the acceptance was
definite and seasonable, whether the new terms were material, et
cetera, linking back to the facts.
How much practice is enough? Consistent practice is key.
Try to do maybe 2 full timed essays each study day, rotating
subjects. Definitely submit at least six
timed essays to your Bob Prep provider for feedback before the
exam, and compare your own practice essays rigorously
against the model answers to see where you can improve Structure,
analysis and rule statements. So as we wrap up this deep dive,
remember, passing the bar is about synthesis.
It's blending your knowledge of the law, your analytical skills
and discipline practice, understanding the principles,
applying them rigorously, practicing under pressure.
Those are your keys. And this raises an important
question. What will you do starting now to
take control of your study habits and confidently tackle
those challenging legal problems on exam day?
It really comes down to putting in that focused work,
consolidating everything you've learned.
Take these strategies, fold them into your study plan, and we'll
go forward and demonstrate what you know.
And just as you're mastering all this material, here's something
to ponder. The legal field and the bar exam
itself is constantly evolving. Think about how the subjects we
focused on today, family law trusts in the states secure
transactions, are actually slated to move off the Mee
starting in July 2026, with some concepts shifting to the Multi
State Performance test. It just highlights how crucial
it is for you as future lawyers to be adaptable, to think
critically about how our profession learns and assesses,
even as you're mastering the rules right in front of you.
Now, keep diving deep.