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ASP, Fall 2003 PRACTICE EXAM FOR LAW AND THE REGULATORY STATE

By Joe Harris,2014-08-11 08:31
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ASP, Fall 2003 PRACTICE EXAM FOR LAW AND THE REGULATORY STATE ...

ASP, Fall 2003

     PRACTICE EXAM FOR

     LAW AND THE REGULATORY STATE

     (Clinton and Lynk Sections)

     (55 minutes)

    NOTE: As you will see, this is a pretty long question

    for 55 minutes. But you may face the same situation on

    the real final exam. In any event, remember that

    everyone is in the same boat time-wise -- and persevere.

     Al Jones recently contacted your law firm seeking legal advice. Al and his wife, Becky, reside in Baxter County, in the state of Sherman. The couple’s marriage has been troubled for

    several months and Becky has now filed for divorce. Al wants your firm’s advice on the possibility of receiving spousal maintenance (alimony) from his wife.

     Al and Becky have been married for 17 years and have no children. The couple met in 1986, when Al was completing his undergraduate degree in religious studies at Sherman University and Becky was completing a 2-year business secretarial program at Baxter Community College. Al and Becky were married that same year, when both were 22 years old. Before they were married, Al told Becky that he planned to attend graduate school "some day" but wanted to work for a couple of years before deciding what field of study he wished to pursue.

     Following graduation both were hired at ChemStar, a pharmaceutical manufacturer. Becky was initially hired as a file clerk, but in 17 years she advanced to her current position as senior administrative assistant to ChemStar’s vice-president, a

    position in which she earns $45,000/year. Al worked for 5 years as a sales rep for ChemStar, a job that he hated. In 1991, Becky’s widowed mother, Harriet, became seriously ill and needed a full-time caretaker. Neither Becky nor Al wanted to place Harriet in the care of strangers, so Harriet moved in with the couple and Al quit his job to care for his mother-in-law. Becky and Al initially thought that this would be a temporary situation

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    and that Al would apply to graduate school once Harriet recovered. Harriet’s medical condition, however, was more severe than

    originally anticipated and her condition steadily worsened for 10 years until her death in late 2002. Al acted as Harriet’s full-

    time caretaker during this entire 10-year period.

     When Harriet came to live with the couple in 1992, she was financially secure because of cash and investments that she had inherited from her husband. Harriet therefore was able to supplement Becky’s salary, and the family had a comfortable, but not extravagant, lifestyle. However, Harriet’s assets were completely depleted over the years by her medical expenses and the vagaries of the stock market, and by the time of her death Al and Becky had incurred $30,000 of debt for Harriet’s hospital bills.

     In February 2003 Al was injured in a car accident that caused him to lose his sight in one eye and left him with a moderate hearing loss. He was denied Social Security disability payments, but he did become eligible for “retraining” through a state-funded employment and training program. Al sank into a depression and then began an extramarital affair. When Becky discovered the affair she pleaded with Al to enter marital counseling with her, but he refused. Disheartened, Becky moved in with her sister, and after several months (during which Al continued the affair), she filed for divorce.

     Al is now worried about his ability to support himself once the divorce is final. He has started the “retraining” program but is frustrated at his slow progress. Al has been unable to find full-time employment and believes that his sight and hearing loss make him close to unemployable. Your investigation has revealed, however, that Al has applied mainly to jobs requiring a high degree of technical expertise that Al does not have. Al appears to have a negative attitude toward jobs that he finds “beneath” him.

     The couple have agreed to an even division of their assets and personal property. At this time the couple’s only major asset is their home, in which they have $80,000 in equity. The couple have agreed to sell the house and split the proceeds so that they will each receive $40,000. Becky has taken sole responsibility for the medical debts incurred on Harriet’s behalf. At this time Al estimates his monthly expenses total $2,500.

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    Your research on Sherman law regarding spousal maintenance has revealed the following:

    A. LEGISLATION:

    In 1999 the Sherman legislature created a special committee to make recommendations regarding its domestic relations statutes, including the spousal maintenance (alimony) statute. The committee report reflected the view that the previous spousal maintenance statute “failed to reflect modern attitudes toward the equal role of men and women in society, the home, and the workplace,” and that the statute should “place on each spouse a personal responsibility for self-sufficiency,” especially in

    light of rising divorce rates in the state.

     The Sherman Legislature did not adopt all of the committee’s recommendations, but it did amend Sherman Revised Statutes (SRS) Sections 25-319(A) and 25-319(B)(3), (4), and (5). As amended in 1999, SRS ? 25-319 reads as follows:

    SRS ? 25-319: Spousal Maintenance; Computation Factors

    A. In a proceeding for dissolution of marriage the court may grant a maintenance order for either spouse for any of the following reasons only if it finds that the spouse seeking maintenance:

    1. Lacks sufficient property to provide for that spouse's reasonable needs.

    2. Is unable to be self-sufficient through appropriate employment. 3. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

    B. Any maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including: 1. The duration of the marriage.

    2. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance. 3. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.

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     B. GUIDELINES

    Pursuant to authority granted by state statute, the Baxter County Superior Court has adopted the following Guidelines for the application of SRS ? 25-319, based on existing court interpretations of the statute:

    SPOUSAL MAINTENANCE GUIDELINES

    S.R.S. ? 25-319 (A)(2):

     a. "Appropriate employment" does not mean "any" employment and may depend on lifestyle established during the marriage. Thomas v. Thomas (1996).

     b. Health of spouse seeking maintenance is relevant consideration. McCarthy v. McCarthy (2000).

    S.R.S. ? 25-319 (A)(3):

     Spouse in marriage of approximately 30 years who has not worked for several years and was formerly, but not presently, certified as a registered nurse is entitled to an award of support. In re Marriage of Foster (2001).

    S.R.S. ? 25-319 (B)(1):

     A marriage of 4-1/2 years is of "short duration," Lincoln v.

    Lincoln, but marriage of 25 years is of "long duration," Nelson v.

    Nelson (2001).

    S.R.S. ? 25-319 (B)(3):

     The parties' debt structure and expenses are factors to consider. Cooper v. Cooper (2001).

YOUR TASK:

     One of the senior partners in your firm, Josephine Junior,

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    has asked you to draft a memorandum that analyzes the following issues under SRS ? 25-319 and the Baxter County Superior Court Guidelines:

     A. Is Al eligible for spousal maintenance?

    B. Assuming that Al is eligible for some spousal

    maintenance: In terms of the amount of a spousal

    maintenance award, what arguments would Al and Becky

    have? [Do not attempt to arrive at any specific dollar

    amount.]

Please draft the memo.

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