About Performance Tasks
Each performance task should take approximately 60 minutes to complete. Performance tasks pose a question or series of questions about a single client matter. The examinee will have two kinds of materials with which to work: a File and a Library. The specific task the examinee must complete will be described in a memorandum in the File. The File may also include interview transcripts, deposition transcripts, or other documents. Both relevant and irrelevant facts will be included, and facts may be ambiguous, incomplete, or even conflicting. Examinees are expected to recognize when facts are inconsistent or missing and to identify sources of additional facts when prompted to do so.
The Library may contain cases, statutes, or other rules, some of which may not be relevant to the assigned lawyering task. The examinee is expected to extract from the Library the legal principles necessary to analyze the problem and perform the task. Performance tasks do not assess memorized substantive law; the Library materials provide the substantive information needed to complete the task.
All performance tasks assess an examinee’s skills in legal research and written legal analysis (Groups A, C, and D of the Foundational Skills), but some performance tasks emphasize some skills over others. Performance tasks that focus on legal research skills will consist of a series of multiple-choice and short-answer questions followed by one extended-response question. Performance tasks that focus on written legal-analysis skills will consist of one longer extended-response question.
Performance tasks may assess skills through subject areas that are partially or fully outside of the Foundational Concepts and Principles; however, when such an area is involved, the question will provide the resources the examinee needs to give a complete answer. For example, a performance task may include aspects of state family law when assessing research and writing skills, but the Library will provide all family law rules necessary to give a complete answer.
Below is a sample performance task that is a modified version of the Butler v. Hill MPT administered in February 2011.
Performance Task Assignment — Memorandum from Supervising Partner
To: [You]
From: [Supervising partner]
Date: February 22, 2021
Re: Jennifer Butler v. Robert Hill
We represent Jennifer Butler in a suit against Robert Hill seeking a divorce and property distribution. Jennifer and Robert have two children; temporary custody and child support orders are in place that are not currently at issue. Robert has challenged the validity of the parties’ underlying marriage. If there is no valid marriage, Jennifer cannot pursue a claim for divorce or a share of marital property.
I have attached the relevant material from Jennifer’s file. I will meet with her later this week in anticipation of trial.
Please draft a short memo that I may use to prepare for my meeting with Jennifer. In the memo, explain whether Jennifer and Robert were legally married under Franklin Family Code § 301 et seq. Do not write a separate statement of facts, but be sure to incorporate the law and the relevant facts and reach a reasoned conclusion.
Client Interview Notes Memorandum
To: Jennifer Butler File
From: [Supervising partner]
Re: Client Interview Notes
August 3, 2020
Today I met with client Jennifer Butler regarding a family law matter. Jennifer related her story to me as follows.
In 2013, Jennifer Butler was 17 years old and pregnant with her first child when Robert Hill, the child’s father, convinced her to marry him against the wishes of her parents. Robert told her he was single. In fact, unbeknownst to Jennifer at the time, Robert, age 22, was already married and had not yet been legally divorced. Jennifer’s parents would not consent to the marriage. Caught in a difficult situation, Jennifer married Robert in a civil ceremony with a forged parental consent form that Robert had signed, and then she moved in with him.
From the date of the marriage ceremony, September 2, 2013, Jennifer and Robert lived together in Franklin. The parties had two children: Christina Hill, born November 14, 2013, and William Hill, born February 22, 2017. Jennifer never changed her surname. Both Jennifer and Robert were employed and contributed financially to the household. Robert consistently earned about twice as much as Jennifer.
In May 2020, Jennifer learned that Robert had been having an affair with a coworker and had lent the woman $10,000. Jennifer immediately decided to end the marriage. She and the children stayed in the home, and Robert moved to his mother’s house one week later.
While Robert was moving out, Jennifer found in Robert’s dresser drawer a copy of a divorce decree that granted Serena Hill a divorce from Robert. Jennifer had never heard of Serena before and had no knowledge that Robert had been previously married. When Jennifer confronted Robert, he claimed he had not bothered to tell her because he had thought he was divorced from Serena before he married Jennifer and only learned that he wasn’t when he was served with the court papers.
Excerpt of Interview Transcript
Excerpt of Transcript of Telephone Interview with Louisa Milligan
(January 28, 2021)
[Attorney]: Louisa, how well do you know Jennifer?
Milligan: We’ve been close friends for the past five years. I live just down the block from her. We have kids who are the same ages.
[Attorney]: Do you have reason to believe that Jennifer and Robert are married?
Milligan: Yes, we’ve been to many social gatherings together, including a celebration of their wedding anniversary.
[Attorney]: When was this?
Milligan: September of 2019. All of their family and friends came. We had a barbecue in their backyard.
[Attorney]: Did they specifically refer to themselves as husband and wife?
Milligan: Yes, always. And, in fact, at the anniversary party, Robert gave a toast saying that marrying Jennifer was the smartest thing he’d ever done.
[Attorney]: Did you ever have any reason to believe that they were not married?
Milligan: No, not until Jennifer called me recently and told me that Robert had apparently been married before and might not have been divorced when they married. She told me that she found a copy of a divorce order in Robert’s dresser drawer when they separated last spring. She had not known that Robert was ever married before.
[Attorney]: Louisa, thank you very much for offering to testify to help Jennifer. We will be calling you again before the trial. Please call me if you have any questions or concerns.
Certificate of Marriage
Certificate of Marriage
State of Franklin
Ocean City Municipality
License Number 199330
I Hereby Certify that on the 2nd day of September 2013, the following persons were by me united in marriage at the Ocean City Courthouse in accordance with the License of the Clerk of the Court in the jurisdiction shown above.
First Spouse’s name: Robert Hill Age: 22 Birthplace: Columbia
Residence: 6226 Berkeley Blvd., Ocean City Marital Status: Single
Second Spouse’s name: Jennifer Butler Age: 17 Birthplace: Franklin
Residence: 80 Octavia Street, Ocean City Marital Status: Single
Relationship to First Spouse if any: None
Consent of Parent of Underage Party (if applicable): Yes, signed consent form presented at time of application for license.
Monica St. George
Signature of Authorized Officer
District Court Judge
Title and Office
Ocean City Municipal Building
Address of Authorized Officer
August 30, 2013
License Date
Judgment of Divorce
STATE OF COLUMBIA
CIRCUIT COURT FOR BROOKFIELD COUNTY
[caption omitted]
JUDGMENT OF DIVORCE
The Complaint for Divorce was heard before the Magistrate on this 10th day of April, 2018, in the Circuit Court for Brookfield County, Columbia. It is hereby
ORDERED that the Plaintiff, SERENA HILL, is granted a Divorce from the Defendant, ROBERT HILL; and it is further
ORDERED that the Plaintiff is hereby restored to the use of her former name of SERENA JORDAN; and it is further
ORDERED that this judgment of divorce shall become final after 30 days.
Dated: 4/10/2018
Hon. Richard McBain
Hon. Richard McBain
Magistrate Judge
Franklin Family Code
FRANKLIN FAMILY CODE
§ 301. Marriage of a Minor; Parental Consent; Pregnancy
Marriage of Individual 16 or 17 Years Old
(a) An individual 16 or 17 years old may not marry unless
(1) the individual has the consent of a parent or guardian and the parent or guardian swears that the individual is at least 16 years old; or
(2) if the individual does not have the consent of a parent or guardian, either party to be married gives the clerk a certificate from a licensed physician stating that the physician has examined the woman to be married and has found that she is pregnant or has given birth to a child.
(b) A marriage by an underage person without valid consent as required by this section, though voidable at the time it is entered into, may be ratified and become completely valid and binding when the underage party reaches the age of consent. Validation of a marriage of an underage person by ratification is established by some unequivocal and voluntary act, statement, or course of conduct after reaching the age of consent. Ratification includes, but is not limited to, continued cohabitation as husband and wife after reaching the age of consent.
* * * *
§ 309. Common Law Marriage—Age Restrictions
(1) A common law marriage entered into on or after January 1, 1990, shall not be recognized as a valid marriage in this state unless, at the time the common law marriage is entered into,
(a) each party is 18 years of age or older, and
(b) the marriage is not prohibited as provided in § 310.
* * * *
§ 310. Prohibited Marriages
(1) The following marriages are prohibited:
(a) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
(b) A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or whole blood;
(c) . . .
(2) Children born of a prohibited marriage are legitimate.
* * * *
Hager v. Hager, Franklin Court of Appeal (2006)
Hager v. Hager
Franklin Court of Appeal (2006)
This is an appeal from a decree of divorce. The trial court ruled that the parties’ marriage was valid and granted a judgment of divorce to the Petitioner, Shirley Hager. Respondent Landon Hager has appealed, contending that the trial court erred in upholding the validity of the marriage. We agree and reverse.
In her petition, Shirley Hager alleged that she and Landon participated in a marriage ceremony on July 20, 1988. At that time, however, Landon had not secured a final decree of divorce from his first wife. He subsequently obtained that decree on March 2, 1989. Shirley’s petition alleged that she was unaware that Landon was married to another woman at the time of their marriage and that Landon told her he was divorced. The dispositive issue on appeal is whether there was a valid ceremonial marriage.
Shirley argues that the marriage was valid. But a bigamous marriage is void ab initio. All marriages that are prohibited by law because one of the parties has a spouse then living are absolutely void. A void marriage is one that has no effect. Notwithstanding Franklin Fam. Code § 301, it cannot be ratified. Indeed, persons who engage in such a marriage may be subject to criminal prosecution.
As a result, the marriage ceremony on July 20, 1988, could confer no legal rights. It was as if no marriage had been performed. The parties’ marriage is void and cannot support an action for divorce.
The trial court held that the parties’ 1988 marriage was merely voidable and that, since Landon had presented himself as Shirley’s husband in all respects, he had ratified the marriage. But, as we have said, the marriage was prohibited, therefore void ab initio, and thus not subject to ratification.
We conclude, therefore, that the trial court’s ruling that the ceremonial marriage was valid was error and reverse the judgment.
Owen v. Watts, Franklin Court of Appeal (2013)
Owen v. Watts
Franklin Court of Appeal (2013)
Thomas Owen appeals from an order granting summary judgment in favor of Cora Watts, decedent Ruby McCall’s surviving sister and personal representative, in her action for possession of McCall’s home at 316 Forest Avenue. Owen refused to leave the home after McCall’s death, claiming that he was McCall’s common law husband and that he was therefore entitled to a possessory dower interest in the property. The trial court held that Owen and McCall had never entered into a common law marriage. The court further held that Owen could not claim an interest in the property. Owen appeals.
The record before the trial court on the motion for summary judgment reveals that Owen moved into McCall’s home some time after her husband’s death in 1991 but before his own divorce in 1996. Owen testified on deposition that following his divorce, he asked McCall to marry him, but that McCall refused because marriage would jeopardize her continued entitlement to a benefit check she was receiving as a result of her late husband’s death. Owen testified that, over the years, he repeatedly asked McCall to marry him but that she refused these requests for the same reason. Owen claimed that McCall finally agreed in 2010 to marry him in 2011 but that she died before the marriage could take place. Cora Watts, McCall’s sister, stated in an affidavit that McCall had told her that she had no intention of ever marrying Owen.
Owen represented that he and McCall cohabited and maintained joint bank accounts. He also produced affidavits from two members of the community who regarded him and McCall as husband and wife. Owen offered no evidence, however, that could persuade a rational and impartial trier of fact that, after his divorce, he and McCall had ever manifested an agreement that they were married, as opposed to a belief that they would become married at a later date.
Owen testified that, at the time he moved in with McCall, “she said, ‘I want you to come and live with me. I want that we will be as husband and wife.’” He claimed that he “said okay” and moved in with her. He further related that he moved in “because she asked me to come and live with her and make our home together as long as we both shall live, until death do us part.”
These words, however, were evidently spoken at a time when Owen was already married and not yet divorced, and therefore could not legally agree to marry McCall. Owen was not divorced until October 22, 1996.
Under Franklin law, a common law marriage requires agreement by parties legally capable of entering into a valid marriage that they have a marriage relationship. Cohabitation continued after the removal of a legal impediment cannot ripen into a common law marriage unless it was pursuant to a mutual consent or agreement to be married made after the removal of the barrier.
Owen and McCall conducted their business affairs as single persons rather than as a married couple. McCall referred to herself as single, or as a widow who had not remarried, in deeds and other documents relating to property transactions, as well as in her tax returns. Similarly, in her will, McCall referred to Owen as a “friend” and left him a bequest in that capacity.
The question before the trial court was whether any impartial trier of fact could reasonably find by a preponderance of the evidence that Owen was McCall’s common law husband. We agree with the trial court that no reasonable judge or jury could so find.
Franklin has long recognized common law marriages, the elements of which are a manifestation of mutual agreement, by parties able to enter into a valid marriage, that they are presently married, followed by cohabitation of at least one year, including holding themselves out to the community as being husband and wife. East v. East (Fr. Ct. App. 1931).
Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest. The burden is on the proponent to prove, by a preponderance of the evidence, all of the essential elements of a common law marriage.
Owen’s testimony established at most that he and McCall had, by the end of her life, agreed to be married at an unspecified future time. This is insufficient to establish the existence of a common law marriage under Franklin law.
For the foregoing reasons, the judgment of the trial court is hereby AFFIRMED.
Performance Task Sample Answer Outline
Review Sample Answer Outline
Robert and Jennifer did not have a valid formal marriage.
- Jennifer was 17 years old and had no actual consent from her parents.
- Jennifer was pregnant, but there was no physician-signed document to confirm the pregnancy.
- Robert forged the parental consent form.
- Thus, there was no legal marriage at the time of the ceremony.
- The marriage could not be ratified due to Robert’s existing marriage. The marriage could have been ratified once Jennifer turned 18 (due to cohabitation, per Section 301(b)), except that the marriage would be deemed “prohibited” under Section 310(1)(a). Robert was not divorced. Under Hager, it was as if no marriage had been performed, so the marriage could not be ratified.
- The only option to establish a marital relationship is common law marriage.
The facts favor the claim that Robert and Jennifer had a common law marriage.
- Jennifer and Robert were able to enter into a valid marriage.
- Jennifer reached the age of 18 before Robert’s divorce was final and was then able to enter into a valid marriage.
- Robert’s first wife, Serena, obtained a divorce judgment from Robert on April 10, 2018.
- Once Robert divorced, a common law marriage between him and Jennifer became possible.
- Jennifer and Robert manifested mutual agreement that they were married.
- The parties initially expressed their intent to be presently married by participating in the ceremonial marriage.
- Although the facts present no later restatement of an agreement to be married after the date of Robert’s divorce from Serena, the ongoing conduct of the parties as a married couple manifests this intent.
- The parties shared household expenses and raised children together.
- Louisa Milligan, a neighbor and friend, said that Robert and Jennifer always referred to themselves as married.
- This evidence should establish that Robert also had a present intent to be married to Jennifer.
- At the anniversary party, Robert told everyone that marrying Jennifer was the smartest thing he had ever done.
- The divorce from Serena had become final in April of 2018, and the anniversary party occurred well thereafter, so this statement was made at a time when a common law marriage was possible.
- There is no evidence that either party ever changed this intent while they cohabited.
- When Jennifer discovered Robert’s affair, she decided to divorce. This demonstrates her agreement and belief that the parties were presently married.
- Robert claims that he thought his first wife had already finalized a divorce before his marriage ceremony with Jennifer.
- After Robert’s divorce was final, the parties continued to live together and hold themselves out as husband and wife.
- This is strong evidence demonstrating that both Jennifer and Robert had a present intent to be married at a time when a common law marriage could have been formed.
- The parties cohabited for at least one year after agreeing to the marriage.
- The parties continued to cohabit as husband and wife after Robert’s divorce became final on April 10, 2018.
- This cohabitation continued from the date of their ceremony until their separation in May of 2020.
- They continued to raise their two children together.
- They shared household expenses.
- Jennifer and Robert held themselves out to the community as husband and wife.
- Robert and Jennifer both held themselves out to the community as being married.
- Despite the fact that Jennifer and Robert had different surnames, neighbors believed that they were married.
- A neighbor stated that she witnessed the parties referring to themselves as husband and wife after the date of Robert’s divorce.
- The same neighbor recalled Robert’s speech at the anniversary where Robert claimed that marrying Jennifer was the smartest thing he had ever done.
- They continued to raise their two children together.
- They shared household expenses.
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