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«New York State Bar Examination Essay Questions QUESTION 1 Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New York, and Bob ...»

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The following are sample candidate answers that received scores superior to the average scale score awarded for the relevant essay. They have been reprinted without change, except for minor editing. These essays should not be viewed as "model" answers, and they do not, in all respects, accurately reflect New York State law and/or its application to the facts. These answers are intended to demonstrate the general length and quality of responses that earned above average scores on the indicated administration of the bar examination. These answers are not intended to be used as a means of learning the law tested on the examination, and their use for such a purpose is strongly discouraged.

ANSWER TO QUESTION 1

1. The issue is whether the New York court has subject matter jurisdiction to hear a divorce action in this case and whether spouses who engage in one-time sexual relations during the pendency of their separation agreement may, nevertheless obtained a conversion divorce.

The Supreme Court of New York has exclusive subject matter jurisdiction over all actions affecting marital status. Pursuant to the Domestic Relations Law (DRL), an ex parte divorce--a divorce action where only one of the spouses is before the court--may be maintained in a New York court, without personal jurisdiction over the absentee spouse, if one of three durational residency requirements is satisfied. First, the plaintiff-spouse must be a New York domiciliary to commence an action for divorce in New York. The plaintiff-spouse's status as a New York domiciliary gives the Supreme Court subject matter jurisdiction over the marital res. Pursuant to the DRL, the plaintiff-spouse must establish that either (a) both spouses are New York residents at the time the action is commenced and the grounds for divorce arose in New York, (b) one spouse has been a New York resident for two years immediately preceding the action, or (c) one spouse has been a New York resident for one year immediately preceding the action and either (i) the marriage was entered into in New York, (ii) New York was the matrimonial domicile at some point, or (iii) the grounds for divorce arose in New York. Failure to establish one of the three durational residency requirements constitutes failure to state a cause of action.

Here, Bob is a New York domiciliary, as he has lived in New York since 2001.

Bob resides in New York and intends to indefinitely remain. Accordingly, the Supreme Court has subject matter jurisdiction over the marriage and may issue is a divorce if Bob can establish one of the three durational residency requirements. Bob has lived in New York since 2001, wholly satisfying the option that one of the spouses be a New York resident for a period of two years immediately preceding the action. Accordingly, Bob has met the jurisdictional and procedural requirements to obtain a divorce from Ann in New York and the Supreme Court may entertain the divorce action.

New York remains the only state that does not provide for no-fault divorce. To obtain a divorce, the plaintiff-spouse must establish one of the five grounds for divorce, as provided in the DRL, only one of which is relevant here: conversion divorce. To obtain a conversion divorce, the spouses must have lived separate and apart pursuant to a valid separation agreement or divorce decree for a period of at least twelve months.

When the action for conversion divorce is based upon a separation agreement, neither spouse must have committed a material breach thereof, or else the divorce will not be granted. To constitute a valid separation agreement, the agreement must be in writing, signed by both spouses, witnessed, and filed with the Supreme Court prior to the filing of the divorce action. The separation agreement, however, will be rescinded where the spouses voluntarily resume cohabitation with intent to reconcile or where they engage in sexual relations with intent to reconcile. The courts have held, however, where separated spouses engage in sexual relations without intent to reconcile, the separation agreement will not be rescinded and a conversion divorce may still be maintained where they meet the durational requirement of time living apart.

Here, Bob and Ann entered into a valid separation agreement, as the facts indicate it was properly acknowledged and filed with the County Clerk. Bob and Ann lived apart pursuant to this agreement from June 2008 to July 2009. As this time period amounts to 13 months, Bob and Ann have met the requirement that they live separate and apart pursuant to a valid separation agreement for at least 12 months. Bob and Ann's one-time fling in January 2009 will not have the effect of rescinding their separation agreement or causing Bob or Ann to be in breach thereof, because Bob and Ann had no other contact since this sexual encounter. Thus, Bob and Ann did not engage in sexual relations in January 2009 with intent to reconcile. Accordingly, Bob will be successful in maintaining his action for conversion divorce because he and Ann lived apart pursuant to a valid separation decree for a period of more than twelve months, and neither he nor Ann materially breached any provisions of that agreement. The Supreme Court will grant Bob a conversion divorce from Ann.

2. The issue is whether an incoming partner is personally liable for debts and obligations incurred by the partnership prior to his entry into the partnership.





New York has adopted the Uniform Partnership Act (UPA) as the law governing partnerships. Under the UPA, a partnership is defined as any association of two or more persons carrying on as co-owners of a business for profit. Pursuant to the UPA, where a partner enters a partnership and pays capital contributions into that partnership, he will be liable on obligations incurred by the partnership prior to his entry only to the extent of his capital contributions. That is, the partnership may use any incoming partner's capital contributions to pay down debts or other obligations that the partnership has incurred, but the incoming partner may not be held personally liable for any debts or obligations that the partnership incurred prior to his entry. Thus, where a partnership incurs a judgment prior to a new partner's entry, the new partner is only liable on that judgment to the extent of the contributions he made into the partnership.

a. Here, Bob became a partner in Law Firm on January 1, 2010. As part of his entry into the Law Firm, Bob paid in capital contributions of $30,000 to the Firm.

Creditor, however, obtained a judgment against the Law Firm in the amount of $500,000 in July 2009, many months before Bob became a partner in the Firm. Thus, Bob could only be held liable on Creditor's judgment against the Firm to the extent of his $30,000 contribution and no more than that. The Law Firm properly applied Bob's $30,000 contribution toward Creditor's judgment because a partnership may use its incoming partner's capital contributions to pay off debts incurred by the partnership prior to the partner's entry.

b. However, Creditor may not enforce its claim against Bob personally on the unsatisfied portion of the debt, because Bob was not a partner of the Law Firm at the time Creditor obtained its $500,000 judgment. Thus, Creditor is limited to obtaining from Bob the $30,000 that Bob paid as capital contributions to the Law Firm and nothing more.

3. The issue is whether a creditor who provides value to a debtor to enable the debtor to acquire rights in the collateral has an enforceable security interest against the debtor despite failing to file a financing statement.

Article 9 of the Uniform Commercial Code (UCC) applies to consensual security interests such as consensual liens in consumer goods and business equipment. Pursuant to Article 9 of the UCC, a creditor's security interest in collateral becomes enforceable-that is, it attaches--when the creditor (a) furnishes value to the debtor, (b) the parties execute a security agreement, and (c) the debtor acquires rights in the collateral. As for the majority of Article 9 security interests, the security agreement is the most crucial method by which to attain attachment. Other security interests may perfect automatically, without the execution of a security agreement, if the creditor takes possession of the collateral. A security agreement must be authenticated by the debtor-that is, the debtor must sign the security agreement in either print or electronic form--and the agreement must reasonably identify the collateral. Where a creditor extends value to the debtor for the purpose of enabling the debtor to acquire rights in the collateral that is the subject of the security interest, however, a purchase money security interest (PMSI) arises. PMSIs in consumer goods enjoy automatic attachment under Article 9 of the UCC and the creditor need not execute a security agreement to attach his PMSI with respect to the debtor. The UCC gives special protection to PMSI holders in an effort to encourage lending to consumers.

Here, Magic Circle is an Article 9 creditor because it took a consensual security interest in Bob's bedroom set. Magic Circle's security interest attached automatically when it lent Bob $6,000 in credit to purchase the bedroom set because this loan enabled Bob to acquire rights in the bedroom set, which constitutes the collateral that Magic Circle has secured in consideration for its loan. Accordingly, Magic Circle is a PMSI holder in Bob's bedroom set and its security interest is attached and enforceable as against Bob. Additionally, Magic Circle's status as a PMSI holder also gives it automatic perfection and super-priority status over all other lien holders that may have a conflicting security interest in the bedroom set or Bob's household goods.

ANSWER TO QUESTION 1

1. a. The issue is whether New York has acquired proper jurisdiction over an out-ofstate Defendant spouse in a divorce action and whether New York may properly adjudicate the divorce action based on the residency of the parties.

Under the CPLR, the New York Supreme Court has exclusive jurisdiction over any action that adjudicates the status of a marriage, including divorce, legal separation, annulments, and declarations of nullity. Marriages are considered property of the state, and therefore the New York Supreme Court has "rem" jurisdiction over the marriage.

Accordingly, to have proper jurisdiction to issue a divorce decree, only the Plaintiff spouse must be domiciled in New York. The domicile of the Defendant spouse is irrelevant, and the New York Supreme Court need not find a basis of jurisdiction over the Defendant spouse to issue a divorce decree. Domicile is determined by (1) presence in the state and (2) an intent to remain in the state indefinitely. Once it is determined that the Plaintiff spouse is a domiciliary of New York, the Plaintiff spouse must properly serve process upon the Defendant spouse or her attorney via personal service or any other form of service authorized by the Court.

In this case, Bob, the Plaintiff spouse, is a domiciliary of New York. He has lived in New York for 8 years, and New York is his permanent residence. The facts indicate the Bob duly served Ann with process in State Y. Therefore, New York has proper jurisdiction to issue a divorce decree. It should be noted that if Bob asked the court to engage in equitable distribution, award maintenance or in any other way affect the property rights of Ann, the Court would have to assert a basis of jurisdiction over Ann via the matrimonial long-arm statute.

In addition to having proper jurisdiction, Bob must also allege in his divorce complaint that he has satisfied New York's Durational Residency Requirements. Under the CPLR, the Plaintiff spouse must substantively allege that the marriage has sufficient connections to New York state such that it is proper for New York to adjudicate the status of the marriage. Failure to properly satisfy the durational residency requirements may result in dismissal for failure to state a cause of action. The durational residency requirements are met in three ways: (1) where both parties are residents of New York at the time the action is commenced and the grounds for divorce arose in New York; (2) where one party has been a resident New York for one year prior to the action plus an additional factor connecting the marriage to New York, including either the marriage took place in New York, New York was the matrimonial domicile of the parties or the grounds for divorce arose in New York, or (3) where one party has been a resident of New York for two years prior to the action, no further showing is necessary.

In this case, Bob the Plaintiff spouse has been a continuous resident of New York for over two years. He alleged this fact in his complaint, and as a result, he satisfied the durational residency requirements. Because Bob has met both jurisdictional requirements and the durational residency requirements, Ann will not be successful in contesting New York's jurisdiction over the divorce action.

b. The issue is whether the separation agreement duly executed by the parties is rescinded due to the fact that the parties engaged in sexual relations on one isolated occasion.

Under New York Domestic Relations Law, a divorce may be obtained either by successfully proving grounds for divorce, which includes abandonment, adultery, imprisonment for 3 consecutive years, or cruel and inhuman treatment. In the absence of grounds for divorce, a party may also obtain what is known as a conversion divorce. To procure a conversion divorce, a party must show that (1) the spouses are separated under either a decree of legal separation or under a validly executed separation agreement filed with the court, and (2) the parties have lived separate and apart for 1 year. However, a court will deem a separation agreement rescinded and will not grant a divorce based on that separation agreement where (1) the parties cohabit with the intent to reconcile after execution of the agreement or (2) where one party has materially breached the terms of the agreement. The restrictions do not apply where the parties are separated based on a decree of legal separation.



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