Family law chapter 2
What are the main reasons couples get a dissolution
impatience, insanity, irretrievable breakdown, felony conviction
material
important enough to influence the decision that was made
fraud
intentionally false statement of fact
statute of frauds
law requiring some contracts to be in writing and signed by the party to be charged by the contract
contract
legally enforceable agreement
cohabitation
living together in an intimate relationship in the manner of husband and wife
common-law marriage
marriage entered into without license or traditional ceremony by persons who agree to marry live together, hold themselves out as married.
ceremonial marriage
marriage that is entered in compliance with statutory requirements
operation of law
means by which legal consequences are imposed by law, regardless of the intent of the parties involved
capacity
mental capacity to enter into a contract
implied in law contract
obligation created by the law to avoid unjust enrichment in the absence of an express or implied contract creating this obligation
meretricious
pertaining to prostitution or unlawful sexual relations
What are the other names for premarital agreement
prenuptial agreement, and antenuptial
public policy
principles inherent in the customs, morals, and notions of justice that prevail in a state
trust
property arrangement or device involving three parties
unjust enrichment
receipt of a benefit in the form of goods or services from another when in fairness and equity the recipient should provide restitution for the goods and compensation for the services
fiduciary relationship
relationship that exists when one party owes loyalty to another party.
waiver
relinquishment or giving up of a right or privilege because of an explicit rejection of it or because of a failure to take appropriate steps to claim it at the proper time
beneficial interest
right to a benefit from property as opposed to the legal ownership
resulting trust
trust created by operation of law to prevent unjust enrichment when a person transfers property under circumstances that raise the inference that they did not intend to transfer beneficial interest to the person taking or holding account
cohabitants
two persons living together in an intimate relationship
partnership
voluntary association of two persons to place their resources in a jointly owned business or enterprise, with a proportional sharing of profits and losses.
adultery
voluntary sexual intercourse between a married person and someone other than his/her spouse
fornicatioin
voluntary sexual intercourse between unmarried persons
Uniform premarital agreement act (UPAA)
A model statute adopted by many states that governs the legality of premarital agreements
Separation agreement
Contract by married persons who have separated that can cover support, custody, property division, and other terms of their separation and probable divorce.
joint venture
business or profit seeking activity of two plus persons who each participate and control the activity
voluntary
by choice, proceeding from a free and unconstrained will
substantive fairness
Equitable in the sense that the terms are satisfactory and reasonable
Public charge
Individual who is primarily dependent on the government for subsistence, as demonstrated by the receipt of public cash assistance for income maintenance or by institutionalization for long term care at government expense.
What are the two types of fairness?
Procedural and substantive
tacit
Understood without being openly stated
What two time frames are used to tell if something is unconscionable?
When the agreement was signed When an attempt is made to enforce it
severability clause
a clause in an agreement that provides that if any part of the agreement is declared to be invalid, the remaining valid portions of the agreement should be carried out
executory contract
a contract in which the parties bind themselves to future activity
equitable remedy
a form of relief, that may be available when remedies at law are not adequate
express contract
agreement whose terms are explicitly stated by the parties
arm's length
as if they were strangers, both looking out solely for their own self interests.
quantum meruit
as much as he deserves
sunset
automatic termination
severable
can be removed without destroying the remains.
what are the four major kinds of agreements that can be entered by persons in an intimate relationship
cohabitation, premarital, post-nuptial, separation.
premarital agreement
contract by persons about to be married that can cover (1) financial and related matters once the marriage occurs and (2) spousal support, property division,and related matters in the event of death, separation divorce or annulment. -a contract that helps define some of the major terms of the marriage contract-
cohabitation agreement
contract by persons living in an intimate relationship who are not married to each other and intend to stay unmarried
Postnuptial agreement
contract made between married persons that covers financial and related matters between them
implied in fact contract
contract that is not created by express agreement but is inferred as a matter of reason and justice from their conduct and the surrounding circumstances
Who are the three parties in a trust?
creator of the trust person who holds legal title to the property person who is to benefit from the property
Second-glance doctrine
examining a document after after it was entered in order to determine whether changed circumstances affect its enforceability
Procedural fairness
fair and reasonable financial disclosure adequate opportunity to consult with others, voluntariness, and the absence of duress and fraud
uncconscionable
shocking the conscience by heavily favoring one side due to the absence of meaningful choice and the highly unequal bargaining positions of the parties.
consideration
something of value exchanged between parties
palimony
support payments ordered after the end of a nonmarital relationship if the party seeking support was induced to initiate or stay in the relationship by a promise of support
overreaching
taking unfair advantage of anothers naivete or other vulnerability, especially by deceptive means.
Property division
the allocation and distribution of property between spouses after a legal separation or divorce.
unity of person
the now-rejected rule that the legal identity of a wife is subsumed into the legal identity of the husband.
elective share
the percentage of a deceased spouse's estate that the surviving spouse can choose to receive despite what the will of the deceased spouse provided for the surviving spouse
duress
the unlawful use of force that overcomes the will so that a person does something he/she does not want to do
rebut
to attack, dispute, or refute
remedy
to correct
constructive test
trust created by operation of law to prevent unjust enrichment