Bob and Anna husband and wife, live together in Memphis, Tennessee. While they are married, they decide to purchase a condominium in Gatlinburg, TN so that they can have a place to start when they go to visit Great Smokey Mountains National Park, as they like to do several times each year. They purchase the condo as tenants by the entirety and pay for the condo with marital funds.
Unfortunately, in 2004, Anna and Mark’s marriage went sour and they decided to divorce, although they maintained an amicable relationship. Since both parties wanted to continue to have access to the condo in Gatlinburg, they had their attorneys insert the following language into the divorce settlement:
“Both parties hereto agree that as long as both parties are living, neither party may sell, encumber or otherwise partition our condominium in Gatlinburg, TN without the consent of the other party.”
In 2014, Bob falls on hard financial times. He really wants the money that he could get by selling his half of the Gatlinburg condo. However, Anna refuses to partition or buy out Bob since she wants continued access, but cannot afford to buy Bob out.
Bob brings an action to partition the property, claiming that the clause in the divorce agreement is unenforceable because it is an invalid restraint on alienation.
Is the clause enforceable? Please write an essay answering this question. Please follow this I.R.A.C style which was given to me by my mentor, 2 cases with Tn law must be presented. IRAC = Issue – Rule – Analysis – Conclusion. It is a way to organize your work in a legal memorandum to insure you have all the components necessary when using case law to form an answer to a legal question. Below is a general breakdown of what goes into each section for a basic style of IRAC organized memorandum: Summary of Facts: Here you state what the assignment facts are; what the hypothetical case is about that the assignment describes. It tells the reader where the issue comes from that is being researched, discussed and concluded. ISSUE: Here you create a simple statement that tells what it is (the question) that the case law is going to answer regarding the assignment facts. You want this worded so that the reader clearly understands what the controversy is and what needs to be determined by the case law. RULE: This is where you present cases that address the issue at hand. When you present your cases you want the proper citation and then to include three parts of each case: 1. What the law is that was determined to govern (rule) over the issue; 2. Brief details of the case to show HOW the court applied that law in order to make their decision; 3. The court’s decision When reading through cases take note of key words such as “required elements,” “two part test,” and other phrases that indicate some sort of criteria required by law for a claim. These make it easy to spot key areas of law that are essential to include. Look for where the court defines a legal theory, as within a definition is often found the criteria for what the law is surrounding the theory. The court will often define a theory, establish a list of required elements, etc., and then begin to discuss how the facts of the case fit into what the law requires and if certain aspects are met or not met in order for the outcome to be decided. Below is an example of how law would be presented in the Rule section:
In regard to blah blah case, Faber v. Blurber, 400 NM. Super. 100 (200), established three elements that must be examined in order to determine if a custodial parent should be permitted to relocate at a considerable distance from the non-custodial parent:
1. The potential advantages of the proposed move, economic and otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the child and is not the result of a momentary whim on the party of the custodial parent; 2. The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; 3. The availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the child and the non-custodial parent. Id. at 186.
Furthermore, the court held that when a reasonable alternative visitation plan is developed, maintaining weekly visitation with the non-custodial parent is not necessary and should not prevent a move that offers an improved lifestyle and substantial advantages to the custodial parent and children he case would continue to be presented in the write up and then the details of how that law applied to the case facts in Gruber would be used in the Application section to indicate how the law would then be applied to the assignment case in the same manner. Depending on the details, the outcome of the assignment case might be different than in Gruber, or it may be the same. Choose at least two cases (or more if the assignment indicates it to be necessary) that offer the best law relevant to the assignment and present the case info from those two cases here in the Rule section, with the most important being the LAW that governs. You can use a combination of paraphrasing the details of the case and how the court applied and decided, and reserve direct quotes for the actual law used.
ANALYSIS/APPLICATION: Here you refer back to the cases in general, and apply the law to the assignment case based on how it was applied in your presented cases. You compare and contrast the assignment facts/details with those in the presented cases to show how/why the court would apply the law in a particular way to form an outcome. By the end of this discussion, your conclusion should be obvious to where it seems to be restating the obvious when you write the conclusion below. An example of how to apply case law using the case above is: In our case plaintiff father seeks to prevent defendant mother from relocating from Pennsylvania to New York with their 10 year old child. The court needs to apply the factors established in Gruber v. Gruber, 400 Pa. Super. 174 ( 1990), to determine if such a move should be allowed even though it requires a change to the child custody/visitation agreement. The first factor in Gruber is to assess the advantage afforded to the child and mother and determine the benefit. As found in Gruber, where the mother had obtained a new position in New York which provided a higher salary as well as tuition for a wellrespected private school, the defendant mother in our case has been offered a position in the state of NY which will increase her economic stability and ability to provide for her son. The school district the potential move would allow the child to attend is a sought after district in the area. In addition, the pending marriage of the defendant mother would provide a stable home environment and further support for the child. This satisfies the first factor in Gruber and establishes that the move is not on a “whim” or without basis or focus on the best interest of the child. (This would continue on from here applying each factor established in the rule and how the court used it to the facts of the case at hand. It would compare and contrast the situation in the presented case to determine how the law would relate and apply to the situation being determined.)
CONCLUSION: Here you give a very brief and concise statement that establishes the “answer” to the issue(s) of the assignment. Do not repeat case details or analysis/application. Simply give the answer to the issue statement. An example conclusion statement: According to Pennsylvania law, defendant Smith would be granted permission to move with the child to NY as all the required factors have been successfully met regarding advantage, motivation and a revised visitation agreement. A few generallegal writing tips
Legal writing does not use the APA format. Textbooks and bibliographies are not part of a legal memorandum. · Single spacing with NO first line paragraph indent is standard format. · Quotes over 49 words require left block indentation without the use of quotation marks. · ANY direct wording from a case or source MUST have a legal citation in order to not be considered plagiarism