Wishing everyone the very best of luck in their studies.
One of my Bar Exam Cram and Prediction’s students asked me a question today about Community Property. I want to share both the question and answer with you. Also, I want to share some insights on how to format your essays.
First, the question:
I have a quick question about the essay approach for community property: where/what “step” should the section of the cram sheet labeled “Equal Management and Control” go?
Since you do not have our Community Property Cram Sheet, I will share an exceerpt so that you have the steps and hopefully my answer to her question will make sense to you.
Community Property Bar Exam Cram Sheet Excerpt:
Here is my answer to her question:
The issue of equal management and control comes up usually in the context where one spouse is selling community property without the consent of the non-selling spouse. Very often the fact pattern involves selling off household furnishings (which is community property). Sometimes, the fact pattern will have one spouse selling or giving away something that is arguably the separate property of the other spouse.
I mention both of these scenarios because if you see either situation you would need to have a discussion of “equal management and control.” This is typically a brief discussion and is not tested on every community property exam.
So, where does it go in the approach? You have a few options. You could address it (if it is an issue) under Step 4) Determine the character of each item of property, specifically under “action.” You could also simply address it separately, after you have completed all of step four. Bear in mind, wherever you choose to address it, you want it to stand out. Therefore, you should use a heading for “Equal Management and Control.” In addition, I recommend using all capital letters for your headings. The reason I recommend using all capital letters is because no matter what spacing your exam takes (which is completely dependent upon how Exam Soft is working that day) your intended headings will be understood by the graders if you use all capital letters.
Here is how you should handle this issue . . .
SOURCE – discuss this area
ACTION – discuss any actions (taking title in one name only, anything that happened and if nothing happened other than the disposing of the furniture for example, then go straight to: Equal Management and Control. Use a heading so that the graders see – at a glance – that you correctly identified the issue.
You could write it out like this (keep in mind, it is late and I am a little tired, but here goes lol):
EQUAL MANAGEMENT AND CONTROL
Spouses owe each other the greatest fiduciary duty. In addition, spouses have the right to equal management and control of all community property. Here, W sold all of the household furniture for one dollar. There is nothing in the facts to suggest that H consented to this sale. Therefore, W violated H’s rights to equal management and control of the community property.
Now you could – depending upon time – end it here (as many fail to address it at all – it is an easy issue to miss). But, a better discussion would also address the potential remedies available to H:
POTENTIAL REMEDIES FOR H:
H may attempt to recover the actual furniture from the buyer. If the buyer is a bonafide purchaser for value, then H will not be able to get the furniture back. A bonafide purchaser for value is someone who pays value for the property. Here, buyer paid only one dollar for all of the household furniture. The furniture was likely worth much more than one dollar. Therefore, buyer can not be a BFP. In addition, any argument of buyer being a “Super BFP” will fail even if buyer did not know of the marriage because any reasonable buyer would likely know that one dollar was not paying full, or even close, to full value.
H may be able to use constructive trust to force the return of the household furniture.
Incidentally, if you have not heard of the concept of a “Super BFP” it is unique to marital situations and is as follows:
A “Super BFP is a regular BFP who took without notice of the marriage. The bar examiners sometimes test this “Super BFP” concept. If you miss it, you won’t fail because you missed it. But, far better to have the discussion and set yourself apart.
So that was my answer to her question about “Equal Management and Control.”
So why am I suggesting that you use all capital letters for your headings? It is because of what can happen in Exam Soft.
Most of the time, Exam Soft works perfectly and there are no glitches. However, you should know that very often what you see on your computer screen during the exam is not necessarily ow what your grader will see it – at least not always in terms of the pagination, spacing and formatting of your exam.
Understand that every bar round examinees seek my help in evaluating their past exam answers. As a result, I have seen thousands of examinees answers over the years. Some years, exams that are returned to examinees print out exactly as they remember typing it in. However on some bar rounds, the essay and pt answers are spaced out oddly, intended indentions for headings might be spaced out very differently than the examiner intended. I have seen bolding continue for entire pages. I have seen very odd spacing where it is not clear which words the examinee intended to serve as a heading.
When I see these things it is not limited to one examinee’s set of answers. Instead, it is something that I see with several examinees exam answers for that same bar round. This means that something was off during that bar round.
I am not trying to alarm you. Most of the time everything goes smoothly. But, if you want your headings to always be understood as headings, then skip the underlining and bolding and simply use ALL CAPITAL LETTERS for your headings. This way, the grader will see, at a glance, what you intended to be a heading regardless of whether Exam Soft is working perfectly or not.
I hope you find this helpful. All the best of luck to you in your studies! Stay positive and believe in yourself. If you feel you need more assistance, consider our Bar Exam Cram and Predictions Package. For more information, see this prior post.
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