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July 2023 · ORIGINAL INSTRUCTIONAL EXAMPLE

Performance Test: In re Marriage of Burke
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July 2023 California Bar Examination · An original settlement-advice letter using the supplied file and library.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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Official source page 12

The Washington Law Group 7 Chadbourn Road Fair Haven, Columbia MEMORANDUM TO: Applicant FROM: Andrew Washington DATE: July 25, 2023 RE: In re Marriage of Burke We represent Wendy Burke in this proceeding for dissolution of her marriage to Harlan Burke. On July 21, 2023, the family court conducted a trial on the issue of the characterization of shares in the stock of DigitalAudio, Inc. that had been issued to Harlan before marriage. During marriage, the value of Harlan’s DigitalAudio shares increased by $200 million. If the court were to characterize the increase entirely as community property, Wendy would effectively receive 50 percent or $100 million, with Harlan receiving the remaining $100 million. But if the court were to characterize the increase entirely as Harlan’s separate property, Wendy would effectively receive nothing, with Harlan receiving the entire $200 million. The court has scheduled argument for July 26, 2023. This morning, Harlan’s counsel called me and offered to enter into a joint stipulation characterizing the increase in value, during marriage, of Harlan’s DigitalAudio shares as 50 percent community property and 50 percent Harlan’s separate property, a characterization that would effectively result in Wendy receiving $50 million1 and Harlan receiving $150 million. I called Wendy and relayed the offer to her. She asked me whether I would recommend that she accept Harlan’s counsel’s offer. Please draft a letter to Wendy, for my signature, responding to her request. Begin with a brief statement2 of your recommendation, then address and resolve the following issues raised by her request, citing the applicable law and the material facts:

Official source page 13

1. Are Harlan’s DigitalAudio shares community property or separate property? 2. Did the community devote more than minimal effort involving Harlan’s DigitalAudio shares during marriage so as to acquire an interest in any increase in value, during marriage, of the shares resulting in community property? 3. How should the family court apportion the $200 million increase in value, during marriage, of Harlan’s DigitalAudio shares?

Official source page 14

REPORTER’S TRANSCRIPT OF PROCEEDINGS TRIAL ON ISSUE OF CHARACTERIZATION OF PROPERTY July 21, 2023 9:00 a.m. Family Court of Columbia, County of Dixon In re Marriage of Burke, Case No. 123632 Maryann Moreno, Judge Presiding THE CLERK: Please remain seated and come to order. The Family Court is now in session, the Honorable Maryann Moreno, judge presiding. Your Honor, this is the matter of In re Marriage of Burke, and it’s case number 123632. Counsel, may I have your appearances for the record? MR. WASHINGTON: Good morning, Your Honor. Andrew Washington for Petitioner Wendy Burke, who is present. THE COURT: Good morning, Mr. Washington. MS. GRANADOS: Good morning, Your Honor. Karina Granados for Respondent Harlan Burke, who is also present. THE COURT: Good morning, Ms. Granados. We’re here today for trial on the issue of the characterization of shares of stock in DigitalAudio, Inc., issued to Mr. Burke before marriage. This matter was originally assigned to Judge Sean Onderick when Ms. Burke filed the petition for dissolution in 2021. On Judge Onderick’s recent retirement, it was reassigned to me. Mr. Washington, call your first witness. MR. WASHINGTON: Your Honor, before calling our first witness, I would like to read into the record a joint stipulation of facts between Ms. Burke and Mr. Burke. THE COURT: Ms. Granados, there’s a joint stipulation?

Official source page 15

MS. GRANADOS: Yes, Your Honor. THE COURT: Proceed then, Mr. Washington. MR. WASHINGTON: Thank you, Your Honor. Petitioner Wendy Burke and Respondent Harlan Burke jointly stipulate as follows: 1. In 1983, Harlan Burke co-founded DigitalAudio, Inc., with Pamela Gardner. 2. In founding DigitalAudio, Harlan Burke and Pamela Gardner each made a capital contribution of $5,000, and each received 50 percent of the shares of its stock. 3. In 1989, Harlan Burke and Wendy Burke married. By the date of marriage, the value of Harlan Burke’s DigitalAudio shares had fallen to zero. 4. In 2009, Harlan Burke and Wendy Burke separated. By the date of separation, the value of Harlan Burke’s DigitalAudio shares had risen to $200 million. THE COURT: Ms. Granados, is this your joint stipulation? MS. GRANADOS: Yes it is, Your Honor. THE COURT: Just one question, Mr. Washington, solely out of curiosity. Ms. Burke and Mr. Burke separated in 2009. But it was not until 2021 that Ms. Burke filed the underlying petition. Why so long? MR. WASHINGTON: Ms. Burke had raised four children with Mr. Burke, relatively amicably, and had not contemplated remarriage. In 2021, she began to contemplate remarriage. THE COURT: Thank you, Mr. Washington. Call your first witness. MR. WASHINGTON: Thank you, Your Honor. We call Petitioner Wendy Burke to the stand.

Official source page 16

WENDY BURKE, called as a witness for Petitioner Wendy Burke, having been duly sworn, testified as follows: DIRECT EXAMINATION MR. WASHINGTON: Q. Good morning, Ms. Burke. A. Good morning. Q. When did you meet Mr. Burke? A. In 1986. Q. How? A. Through Pam — Pamela Gardner. She was a high school friend, and thought I’d like Harlan. Q. Did you? A. Yes, very much. He was so different from me, but in a good way. He had just graduated from the University of Columbia with a degree in computer science and electrical engineering; I was about to graduate with a degree in Classics – that’s Latin and Greek. Q. Was Mr. Burke working at DigitalAudio in 1986? A. Yes, night and day. Typical start-up. Q. When did you marry? A. 1989. Q. When did you separate? A. 2009. Q. Did Mr. Burke work at DigitalAudio throughout that time?

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A. Yes. Night and day. Q. Did you ever work at DigitalAudio? A. Maybe not at DigitalAudio, but for DigitalAudio. In the early days of our marriage, I helped Harlan with shipping some hardware and software. Q. Did you ever work outside the home? A. Not outside the home, but in the home, just as hard as Harlan worked at DigitalAudio. Over the years, we had four children. I worked more than full time caring for them, for Harlan, and for the house. Q. Do you work outside the home now? A. At my age, and with a degree in Classics, no. Q. Are you getting by? A. Barely. MR. WASHINGTON: Thank you, Ms. Burke. That’s all I have. THE COURT: Cross-examination, Ms. Granados? MS. GRANADOS: Yes, Your Honor. CROSS-EXAMINATION MS. GRANADOS: Q. Good morning, Ms. Burke. A. Good morning. Q. You just testified that “I worked more than full time caring for them”—your four children—“for Harlan, and for the house.” A. Yes.

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Q. But isn’t it true that you didn’t have to “work more than full time”? A. No. Q. But isn’t it true that, many times over the years, Mr. Burke offered to hire housekeepers, nannies, drivers, and whatever other household staff you might have needed to enable you to pursue any career you wished, but that you refused? A. Yes. Q. Why? A. I just preferred to raise my own children myself, especially with Harlan working night and day at DigitalAudio. MS. GRANADOS: Thank you, Ms. Burke. That’s all. THE COURT: Redirect, Mr. Washington? MR. WASHINGTON: No, Your Honor. THE COURT: Call your next witness. MR. WASHINGTON: We have none, Your Honor. Ms. Burke rests. THE COURT: Ms. Granados, do you have any witnesses? MS. GRANADOS: Yes, Your Honor. Mr. Burke. HARLAN BURKE, called as a witness for Respondent Harlan Burke, having been duly sworn, testified as follows: DIRECT EXAMINATION MS. GRANADOS: Q. Good morning, Mr. Burke.

Official source page 19

A. Good morning. Q. Did Ms. Burke ever do any work at or for DigitalAudio. A. No. Q. Did you ever offer to hire household staff to enable Ms. Burke to pursue a career? A. Yes, many times. Q. Did she ever take you up on any of your offers? A. No. MS. GRANADOS: Thank you, Mr. Burke. That’s all. THE COURT: Cross-examination, Mr. Washington? MR. WASHINGTON: Yes, Your Honor. CROSS-EXAMINATION MR. WASHINGTON: Q. Good morning, Mr. Burke. A. Good morning. Q. Isn’t it true that, over the years, you’ve often said that Ms. Burke was a great wife and mother? A. Yes—and I meant it. Q. You just heard Ms. Burke testify that she is “barely getting by,” didn’t you? A. Yes. Q. Isn’t it true that you’re “getting by” quite well? A. Yes, very comfortably. I can’t complain.

Official source page 20

MR. WASHINGTON: Thank you, Mr. Burke. That’s all I have. THE COURT: Redirect, Ms. Granados? MS. GRANADOS: No, Your Honor. THE COURT: Ms. Granados, do you have any further witnesses? MS. GRANADOS: Yes, Your Honor. One more, Pamela Gardner. PAMELA GARDNER, called as a witness for Respondent Harlan Burke, having been duly sworn, testified as follows: DIRECT EXAMINATION MS. GRANADOS: Q. Good morning, Ms. Gardner. A. Good morning. Q. When did you meet Mr. Burke? A. In 1981, when a bunch of us got together to form a band. Q. Did you found DigitalAudio with Mr. Burke? A. Yes. Q. Why? A. To transform the music recording industry by creating a market for cost-effective, privately-owned studios as an alternative to expensive commercial ones. Q. What were your roles at DigitalAudio? A. I was the Chief Executive Officer and Harlan was the Chief Scientific Officer. Q. Was DigitalAudio able to transform the music recording industry?

Official source page 21

A. Yes, I’m proud to say twice, through two entirely different products. Early on, there was SoundAudio, with its hardware and software. And later, there was ProAudio, with its entirely different hardware and software. Q. Let me ask you about SoundAudio first. Who worked on it? A. Harlan. He designed SoundAudio, updated SoundAudio, and sustained SoundAudio throughout its life as a marketable product. Q. Did anyone work with Mr. Burke on SoundAudio? A. No. SoundAudio was Harlan’s baby. We were lucky Harlan stayed with DigitalAudio throughout its marketable life. No one else knew much about it. Q. Did Mr. Burke also work on ProAudio later on? A. No. Not at all. Others at DigitalAudio developed, updated, and sustained ProAudio. Q. Did ProAudio derive from SoundAudio? A. No, it was entirely different, both in hardware and software. Q. In 2009, when, according to the joint stipulation, the value of Mr. Burke’s DigitalAudio shares was $200 million, was SoundAudio a marketable product? A. No, SoundAudio had ended its marketable life years earlier in 2009. Q. In 2009, was ProAudio a marketable product? A. Yes. Q. In your opinion as DigitalAudio’s Chief Executive Officer, what was the basis of the value of DigitalAudio’s shares in 2009—SoundAudio or ProAudio? MR. WASHINGTON: Objection: Impermissible opinion. THE COURT: Overruled. A businessperson like Ms. Gardner may present an opinion based on her knowledge and participation in the day-to-day affairs of the business. [To the witness:] You may answer.

Official source page 22

THE WITNESS: ProAudio. MS. GRANADOS: Thank you, Ms. Gardner. That’s all. THE COURT: Cross-examination, Mr. Washington? MR. WASHINGTON: Yes, Your Honor. CROSS-EXAMINATION MR. WASHINGTON: Q. Good morning, Ms. Gardner. A. Good morning. Q. Between 1989, the date of marriage, and 2009, the date of separation, was Mr. Burke important to DigitalAudio? A. Yes, indeed. Without Harlan, DigitalAudio would not have come into existence and would not have remained in existence. He was always working, always at 110 percent. He’s one of the most skilled computer scientists and electrical engineers of his generation, and he attracted many other skilled computer scientists and electrical engineers to DigitalAudio. Q. But how could Mr. Burke be important to DigitalAudio if he had nothing to do with ProAudio? A. ProAudio got off to a very rocky start. After initial development, it had to be redeveloped, not once, but several times. Harlan was able to keep updating SoundAudio, and DigitalAudio was able to keep selling SoundAudio, until ProAudio became marketable. Without Harlan, DigitalAudio would have gone out of business1 and it would never have developed ProAudio. MR. WASHINGTON: Thank you, Ms. Gardner. That’s all I have. THE COURT: Redirect, Ms. Granados?

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MS. GRANADOS: No, Your Honor. Mr. Burke rests. THE COURT: We’ve come to the end of presentation of evidence and all that remains is argument. I’ve got another matter I have to handle this afternoon. Let’s reconvene for argument at the same time in five days, if that fits your schedules. MR. WASHINGTON: That’s fine with me, Your Honor. MS. GRANADOS: It’s fine with me as well. THE COURT: Excellent. See you then.

Official source page 26

In re Marriage of Rand Columbia Court of Appeal (2015) In this proceeding for dissolution of marriage, Linda Rand appeals from an order characterizing shares of stock in Rand Investment Corporation (RIC), which Charles Rand formed before marriage. Finding no error in the order, we shall affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY In 1974, Charles formed RIC to provide investment advisory services in exchange for fees based on the percentage of clients’ assets under management. Charles owned all of RIC’s shares and would continue to do so over the following years. In 1986, Charles married Linda. As of the date of marriage, the value of Charles’s RIC shares was zero. Between 1986 and 1991, Charles worked for RIC night and day; Linda was not involved with the business at all. The value of Charles’s RIC shares rose from zero to the tens of millions of dollars. Between 1991 and 2004, lifted by an ever-rising market, RIC became enormously successful. By 1991, Charles had withdrawn from the business, having left it essentially on autopilot, and had turned from making money to spending money. Linda remained uninvolved with the business. The value of Charles’s RIC shares rose from the tens of millions of dollars to the hundreds of millions. Charles and Linda amassed $300 million in cash. In 2004, Charles and Linda separated. As of the date of separation, the value of Charles’s RIC shares, as noted, had risen to the hundreds of millions of dollars. In 2005, Charles filed a petition for dissolution of marriage. Charles and Linda soon entered into a joint stipulation distributing all of their $300 million in cash, giving each $150 million.

Official source page 27

In 2011, after extensive—and to our mind, excessive—discovery and motion practice by Charles and Linda, the family court conducted a trial on the issue of the characterization of Charles’s RIC shares. In 2012, the family court issued an order with a statement of decision. The court: (1) characterized Charles’s RIC shares as his separate property; (2) characterized, as community property, the increase in the value of his shares between the date of the marriage in 1986 and his withdrawal from the business in 1991, under Pereira v. Pereira (Colum. Supreme Ct., 1909); and (3) characterized, as Charles’s separate property, the increase in the value of his shares between his withdrawal from the business in 1991 and the date of separation in 2004, under Van Camp v. Van Camp (Colum. Ct. App., 1921). The court awarded Linda tens of millions of dollars consisting of her 50 percent share of the community property, and awarded Charles hundreds of millions of dollars consisting of: (1) his 50 percent share of the community property; and (2) his 100 percent of his separate property. It is from this order that Linda has appealed. DISCUSSION Under Columbia law, marriage is an egalitarian partnership. Property that either spouse acquires during marriage belongs to the marital community—it is community property. See, Columbia Family Code, section 760. At dissolution, community property is awarded to each spouse in an equal 50 percent share. Id. Section 2550. In contrast, property that either spouse acquired before marriage belongs to that spouse—it is his or her separate property. See id. Section 770. Likewise, the proceeds of property that either spouse acquired before marriage also belong to that spouse—the proceeds are also his or her separate property—even if he or she acquires the proceeds during marriage. See id. At dissolution, separate property is confirmed in its entirety to the owning spouse. Id. Section 2550. But because marriage is an egalitarian partnership, whenever the community devotes more than minimal effort involving a spouse’s separate property during marriage, the community acquires an interest in any increase in value, during marriage, of the separate property, and that interest is community property. In re Marriage of Dekker (Colum. Ct. App., 1993).

Official source page 28

It follows that, in dividing property at dissolution, the family court must apportion the increase in value, during marriage, of one spouse’s separate property whenever the community devotes more than minimal effort involving the separate property during marriage. One approach to apportionment, under Pereira, applies when the increase in value, during marriage, of one spouse’s separate property is principally due to community efforts—i.e., when such efforts are the predominant cause of the increase. This approach requires the family court to apportion the increase in value mainly to the community estate (with the remainder to the owning spouse’s separate estate). Another approach to apportionment, under Van Camp, applies when the increase in value, during marriage, of one spouse’s separate property is principally due to factors other than community efforts—again, when such efforts are the predominant cause of the increase. This approach requires the family court to apportion the increase in value mainly to the estate of the owning spouse (with the remainder to the community estate). Finally, although in dividing property at dissolution the family court is not required to adopt either the Pereira approach or the Van Camp approach—or indeed any other approach—the court must nevertheless divide the property in such a way as to achieve substantial justice between the spouses. After review, we conclude that the family court properly characterized Charles’s RIC shares as his separate property. It is undisputed that Charles acquired his shares before marriage. We also conclude that the family court properly determined that the community acquired an interest in the increase in value, during marriage, of Charles’s RIC shares. It is similarly undisputed that the community devoted more than minimal effort involving Charles’s shares during marriage through Charles’s hard work for the business between marriage in 1986 and separation in 1991. Although there is no evidence that Linda worked for the business, that fact is inconsequential. The community acts whenever either of the spouses1 acts. Against this background, Linda contends that the family court erred by adopting a “hybrid Pereira/Van Camp approach.” We disagree. The facts show two separate periods2 during marriage: The first period, between 1986 and 1991, was the “Pereira period,” during which the increase in value of Charles’s RIC shares

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was principally due to community efforts, i.e., Charles’s hard work was the predominant cause of the increase. The second period, between 1991 and 2004, was the “Van Camp period,” during which the increase in value of Charles’s RIC shares was principally due to factors other than community efforts, i.e., market forces were the predominant cause of the increase. Linda goes on to contend that the family court erroneously subjected her to substantial injustice by awarding Charles hundreds of millions of dollars and awarding her only tens of millions. The court, of course, did not leave Linda destitute. Even if it had, it would not have mattered. Contrary to Linda’s assumption, substantial justice between the spouses does not require the court to evenly divide the entire increase in value, during marriage, of one spouse’s separate property. Instead, it requires the court to evenly divide only the portion of the increase principally due to community efforts. That is what the court did. DISPOSITION For the reasons stated, the order of the family court is AFFIRMED.

Before you write: issue outline

  1. Write the requested client letter and state the settlement recommendation first.
  2. Separate ownership of the original shares from characterization of their increase in value.
  3. Compare the continuing causal importance of Harlan’s work with the later product’s independent development.

Dear Ms. Burke:

I recommend that you decline the present offer and seek a larger community allocation at argument. The proposed stipulation would give you $50 million, not half of the $200 million increase. You have a substantial argument that the community’s work was the predominant cause of the increase and that your share should be closer to $100 million. That result is not assured: the court could assign considerable weight to ProAudio’s independent development and award you less than the offer. The reasons for my recommendation, and the principal litigation risk, follow.

1. Harlan’s original DigitalAudio shares are his separate property

Under In re Marriage of Rand, Columbia Family Code section 760 generally characterizes property acquired during marriage as community property. Section 770 treats property acquired before marriage, and its proceeds, as separate property. Section 2550 calls for equal division of the community estate and confirmation of separate property to its owner.

The stipulated facts establish that Harlan co-founded DigitalAudio in 1983 and received his shares for a $5,000 capital contribution. You married in 1989. The shares therefore began as his separate property. Their having no value on the marriage date does not change when he acquired them or automatically transform them into community property. Nor does the later increase during marriage automatically become entirely separate merely because the underlying shares were his.

The relevant increase is the $200 million between marriage in 1989 and separation in 2009. Your petition in 2021 does not move those stipulated dates. We seek a community interest in that increase, while recognizing Harlan’s original ownership of the shares.

2. The community contributed far more than minimal effort

Rand, applying In re Marriage of Dekker, holds that when the community devotes more than minimal effort to a spouse’s separate property during marriage, it acquires a community interest in the increase. The community acts through either spouse. Your entitlement therefore does not depend on proving that you personally designed software, drew a salary from DigitalAudio, or worked in its offices.

You testified that Harlan worked at DigitalAudio night and day throughout the marriage. The company’s CEO, Pamela Gardner, confirmed that he always worked at 110 percent, designed and sustained SoundAudio, and attracted other skilled scientists and engineers. That evidence readily exceeds the minimum-effort threshold. Unlike Charles Rand after his withdrawal from RIC, Harlan did not leave the business operating on autopilot for a later period.

Your early assistance shipping hardware and software provides additional evidence if credited, even though Harlan denied you worked for the company. We need not resolve that credibility dispute to establish community effort because Harlan’s own work is enough. Your work caring for the home and four children also explains how the marital partnership functioned. His offers to hire domestic staff and your choice to raise the children yourself do not convert his marital labor into separate-property effort or extinguish the community’s rights.

We should therefore prevail on the threshold question that the community acquired an interest in the growth. That conclusion does not yet determine how much of the increase the court will allocate to it.

3. The stronger apportionment argument favors the community

Rand describes two principal methods. Pereira applies when community effort predominantly causes the increase and allocates it mainly to the community, with the remainder to the separate estate. Van Camp applies when other factors predominate and allocates the increase mainly to the separate estate, with the remainder to the community. A court is not confined to one formula, but must achieve substantial justice by dividing equally the portion principally attributable to community effort.

Our strongest evidence is Gardner’s concession that DigitalAudio would have gone out of business without Harlan. ProAudio repeatedly required redevelopment and was not initially marketable. Harlan kept updating SoundAudio and the company kept selling it until ProAudio could succeed. His labor thus did more than create a discontinued product: it preserved the company and the opportunity to develop the product supporting its eventual value. Gardner also credited his ability to attract skilled employees. The court can find that these continuing efforts were the predominant cause of the rise from zero to $200 million and apply Pereira principally to the community’s benefit.

If the entire increase were characterized as community property, your half would be $100 million. The supplied library describes apportionment as mainly, rather than necessarily entirely, to one estate. The record gives neither an agreed separate return nor figures supporting an exact alternative division. We should argue for the largest supported community allocation without presenting a guaranteed $100 million judgment or importing an outside formula not supplied by the library.

Harlan’s substantial contrary argument

Gardner testified that SoundAudio had ended its marketable life by separation, that ProAudio was entirely different hardware and software, that others developed and sustained it, and that the 2009 share value rested on ProAudio. Harlan did not work on ProAudio. He will argue that other employees’ efforts and the distinct later product, rather than his community labor, principally account for the value. If accepted, that supports a Van Camp allocation predominantly to his separate estate.

This is the most important risk to our position. Merely showing that the community performed substantial work is not enough to prove it predominantly caused all value. We will answer that Gardner’s independent-product testimony cannot be separated from her admission that Harlan’s continuing work was necessary for that product ever to reach the market. The causal chain is stronger here than a claim based only on historical association with a later success.

A hybrid is possible but not automatic

Rand approved different approaches for identifiable periods: Charles’s early work drove one period, and market forces after he withdrew drove another. Harlan will seek an analogous division between SoundAudio and ProAudio. But Harlan continued working throughout the marriage, and his continuing SoundAudio work supported ProAudio through its failed development stages. There is no stipulated date or intermediate valuation at which his contribution ceased and an independent period began. A court may adopt an equitable hybrid, but the record does not dictate a 50–50 division merely because there were two products.

Substantial justice also does not mean equalizing all the spouses’ wealth. Rand rejected that proposition even where the resulting awards differed greatly. Your current financial circumstances are important to evaluating the practical risk of settlement, but our legal case must rest on the source of the increase rather than a claim that your need alone requires equal division of separate property.

The offer and your decision

Under the proposal, $100 million would be community property and $100 million would remain Harlan’s separate property. You would receive half of the community portion, or $50 million. Harlan would receive the other $50 million plus the $100 million separate allocation, totaling $150 million.

Accepting would secure the $50 million allocation and avoid the risk of a substantially lower award, as well as further litigation expense and delay. Declining preserves a strong claim to a larger amount but exposes you to the Van Camp argument and the court’s broad apportionment judgment. No exact probability or alternative amount can responsibly be promised from this record.

I recommend seeking improved terms and, if the present offer remains unchanged, presenting our Pereira-based argument. The final settlement decision is yours. Before responding, I would discuss how much weight you place on certainty, timing, and the possibility of receiving less, alongside the strength of our evidence of Harlan’s indispensable continuing labor.

Sincerely,

Andrew Washington

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.

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