Family law ch. 4 & 5

quantum meruit

"As much as he deserves." An award of the reasonable value of services provided despite the absence of an express or implied agreement to pay for the services.

cause of action

(1) A legally acceptable reason for bringing a suit. A rule that constitutes a legal theory for bringing a suit. (2) The facts that give a person a right to judicial relief. When you state a cause of action, you list the facts that give you a right to judicial relief against the wrongdoer.

separation agreement

-also called marital settlement agreement A contract by married persons who have separated (or who are about to separate) that can cover support, custody, property division, and other terms of their separation and divorce

parties to a premarital agreement may contract with respect to:

1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) the modification or elimination of spousal support; (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) the ownership rights in and disposition of the death benefit from a life insurance policy; (7) the choice of law governing the construction of the agreement; (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

meretricious

1. Pertaining to prostitution or unlawful sexual relations. 2. Vulgar or tawdry. 3. In Washington State, a meretricious relationship means a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.

remedy

1. The means by which a right is enforced or the violation of a right is prevented, compensated for, or otherwise redressed. 2. To correct. The plural is remedies.

examples of postnuptial agreements

1. While happily married, George and Helen enter an agreement whereby George lends Helen $5,000 at 5 percent interest. She is to make monthly payments of $300. (For this loan, George uses money he recently inherited from his mother.) 2. While happily married, George and Helen decide to amend their premarital agreement by changing some of its terms. 3. After Jim and Mary separate, they reconcile. They enter a reconciliation agreement that covers issues that they want clarified. (the reconciliation agreement is another example of a postnuptial agreement)

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.

postnuptial agreement

A contract between married persons that covers financial and related matters between them. They may have no intention of separating. If they have this intention, the contract is commonly called a separation agreement.

postnuptial agreement

A contract by married persons that covers financial and related matters between them. The parties may have no intention of separating. If they have this intention, the agreement is commonly called a separation agreement. (also called a postnup or a midnup) is a contract made between married parties that covers financial and related matters between them. They may have no intention of separating. If they have this intention, the contract is commonly called a separation agreement.

seperation agreement

A contract by married persons who have separated (or who are about to separate) that can cover support, custody, property division, and other terms of their separation and divorce.

premarital agreement

A 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. helps define some of the major terms of the marriage contract

cohabitation agreement

A contract by persons in an intimate relationship who are not married to each other (and who intend to stay unmarried indefinitely) that covers financial and related matters while they are living together and upon the end of the relationship by death or separation.

executory contract

A contract in which the parties bind themselves to future activity. A contract that is not yet fully completed or performed.

equitable remedy

A form of relief (e.g., injunction, specific performance, or constructive trust) that may be available when remedies at law (e.g., damages) are not adequate.

state of frauds

A law requiring some contracts (e.g., one that cannot be performed within a year of its making) to be in writing and signed by the party to be charged by the contract.

contract

A legally enforceable agreement. The elements of most contracts are offer, acceptance, and consideration. Some contracts must be in writing.

common law marriage

A marriage entered without license or traditional ceremony by persons who (a) agree to marry, (b) live together as husband and wife, and (c) hold themselves out as married. A marriage of two people who have not gone through a ceremonial marriage. Called "informal marriage" in Texas.

ceremonial marriage

A marriage that is entered in compliance with statutory requirements (e.g., obtaining a marriage license, having the marriage performed by an authorized person before witnesses). A marriage other than a common law marriage.

beneficial interest

A right to a benefit from property or an estate as opposed to the legal ownership of that property or estate.

civil union

A same-sex legal relationship of unmarried individuals who have the same state benefits and responsibilities as individuals in a marriage.

domestic partnership

A same-sex or opposite-sex legal relationship of unmarried individuals who are emotionally and financially interdependent and who have some of the same state benefits and responsibilities as individuals in a marriage.

arms length

A singular characteristic of most commercial contracts is that the parties are allowed to treat each other at arm's length, as if they are strangers, both looking out solely for their own self-interests. This is not entirely true of couples engaged to be married. Pertaining to how parties would treat each other if they were strangers looking out for their own self-interests with no confidential or other relationship between them that would cause one to expect the other to provide a special advantage or to act with fairness.

constructive trust

A trust created by operation of law to prevent unjust enrichment by someone who has improperly obtained property through fraud, duress, abuse of confidence, or other wrongful conduct.

resulting trust

A trust created by operation of law to prevent unjust enrichment when a person transfers property under circumstances that raise the inference that he or she did not intend to transfer a beneficial interest to the person taking or holding the property.

public charge

An individual who is primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or by institutionalization for long-term care at government expense.

fraud

An intentionally false statement of fact that is material and is made to induce reliance by the plaintiff, and that results in harm because of the reliance.

unjust enrichment

Another Marvin theory is implied-in-law contract (also called quasi contract), which is an obligation created by law to avoid unjust enrichment The 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 or compensation for the services even though there was no express or implied promise to do so. The amount the recipient should pay for services is called quantum meruit, the reasonable value of the services provided.

spousal support clause

At one time, many courts considered spousal-support clauses to be against public policy because they facilitated (or encouraged) divorce. The thinking was that divorce planning before marriage might incline a party to seek a divorce if he or she knew what funds or other property would be available upon divorce, particularly, of course, if the financial terms upon divorce were favorable.

sunset

Automatic termination or expiration.

cohabitation

Cohabitation means living together in an intimate (usually sexual) relationship. This definition, of course, would also cover husbands and wives, although the word cohabitation is most often used in reference to unmarried persons living together in an intimate relationship. Hence, the most common definition of cohabitation is living together as (or like) husband and wife without being married, or living together in an intimate relationship in the manner of a husband and wife.

example of a cohabitation agreement

Ed and Claire meet at a bank where they work. After dating several years, they decide to live together. Although they have a child they do not want to be married. They enter an agreement that specifies what property is separately owned and how they will divide property purchased with joint funds if the relationship ends. The agreement is an example of a cohabitation agreement.

substantive fairness

Equitable in the sense that the terms are satisfactory and reasonable. Focus is on the CONTENT of the agreement itself. Was it a good deal for both parties? MOST STATES do not require premarital agreements meet the test of substantive fairness so long as there was procedural fairness

second-glance doctrine

Examining a document after it was entered in order to determine whether changed circumstances affect its enforceability is referred to as the second-glance doctrine.

theories of recovery (remedies)

Express contract • Implied-in-fact contract • Implied-in-law contract (quasi contract) • Implied trust; constructive trust • Partnership • Joint venture

procedural fairness

Full financial disclosure, adequate opportunity to consult with others, voluntariness, and the absence of duress and fraud. Informed consent. focus is the PROCESS the parties went through when they entered premarital agreement. was it open, voluntary and informed? ALL STATES require procedural fairness for premarital agreements

material

Important enough to influence the decision that was made.

example of a premarital agreement

Jim and Mary want to marry. Each has a child from a prior marriage. Before the wedding, they enter an agreement that makes clear what property each brings to the marriage and will remain separate property. The agreement states that neither will have any rights in this separate property; it will go to the children from their prior marriages. In addition, the agreement states that all income earned by a party during the marriage shall be the separate property of that party and therefore shall not be divided as marital or community property in the event of a divorce.

common-law property

Property acquired during the marriage in a state other than a community-property state. (Older definition: property acquired during the marriage that is owned by the spouse who earned it or who has title to it.)

community property

Property in which each spouse has a 50 percent interest because it was acquired during the marriage other than by gift, will, or intestate succession (inheritance) to only one of the spouses.

severable

Removable without destroying what remains. Something is severable when what remains after it is taken away has legal force and can survive without it. The opposite of severable is essential or indispensable.

example of a separation agreement

Sam and Jessica have separated. In anticipation of their divorce, they enter an agreement that specifies how their marital property will be divided, who will have custody of their children, and what their support obligations will be. Later they will ask the divorce court to approve this agreement.

consideration

Something of value that is exchanged between parties. It can be an act, a forbearance (not performing an act), a promise to perform an act, or a promise to refrain from performing an act.

palminy

Support payments ordered after the end of a nonmarital relationship (a) if the party seeking support was induced to initiate or stay in the relationship by a promise of support or (b) if ordering support is otherwise equitable.

overreaching

Taking unfair advantage of another's naiveté or other vulnerability, especially by deceptive means.

Uniform Premarital Act

The Uniform Premarital Agreement Act (§ 1) defines a premarital agreement as: it as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." a model statute adopted by many states that governs the legality of premarital agreements

voluntary

The agreement must be voluntary, meaning that it must proceed from a free and unconstrained will. By choice; proceeding from a free and unconstrained will.

property division

The allocation and distribution of property between spouses (or ex-spouses) after a legal separation or divorce. Also called property settlement, property distribution.

unity of person

The common law rule- legal identity of a wife was subsumed into the legal identity of the husband. Also called doctrine of oneness, spousal-unity rule. Hence, for a wife to enter a contract with her husband was the equivalent of the husband contracting with himself. This rule no longer exists. Today, a wife has her own independent legal identity and can enter contracts such as postnuptial agreements with her husband. Furthermore, spouses can sue each other for breach of these contracts.

reasons heart-balm statutes were enacted

The emotions involving a refusal to marry are usually so personal, intense, and possibly bitter that a court did not appear to be a proper setting to handle them. Furthermore, people should be allowed to correct their mistakes without fear of a lawsuit

capacity

The legal power to do something such as enter a contract or a relationship. Also called legal capacity.

operation of law

The means by which legal consequences are imposed by law, regardless of (or even despite) the intent of the parties involved.

fiduciary relationship

The relationship that exists when one party (called the fiduciary) owes another loyalty, candor, and fair treatment. The fiduciary is required to act in the interest of and for the benefit of the other. Also called a confidential relationship

waiver

The 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.

cohabitants

Two persons living together in an intimate (usually sexual) relationship.

adultery

Voluntary sexual intercourse between a married person and someone other than his or her spouse. (See glossary for an expanded meaning.)

fornication

Voluntary sexual intercourse between unmarried persons.

joint venture

a business or profit-seeking activity of two or more persons who each participate and control the activity (or who have the right of participation and control). A court might use the joint venture theory to cover enterprises entered into by two unmarried individuals while living together (e.g., the purchase of a rental property). Once a joint venture is established, the parties have legally enforceable rights in the fruits of their endeavors.

implied-in-fact contract

a contract that is not created by an express agreement between the parties but is inferred as a matter of reason and justice from their conduct and the surrounding circumstances. The contract exists when it is reasonable to conclude that the parties had a tacit understanding that they were bound by a contract even though the terms of the contract were never expressly discussed

the states that have abolished heart-balm actions have done so by what is called

a heart-balm statute

trust

a property arrangement or device involving three parties -the creator of the trust (called the settlor or trustor), • the person who holds legal title to the property (called the trustee), and • the person who is to benefit from the property (called the beneficiary or cestui que trust); the beneficiary has a beneficial interest in the property.

partnership

a voluntary association of two or more persons to place their resources in a jointly owned business or enterprise, with a proportional sharing of profits and losses. A court might find that an unmarried couple entered the equivalent of a partnership and thereby acquired rights and obligations in the property involved in the partnership.

When a court must decide whether an agreement is unconscionable, it examines two time frames:

a) when the agreement was signed (before the marriage) and (b) when an attempt is made to enforce it (often after a divorce action is filed)

express contract

an agreement or contract whose terms are explicitly stated by the parties. Express contracts can be oral or written. An example of the latter is a written cohabitation agreement

punitive damages

can be awarded if the party breaching the promise to marry acted out of malice Damages that are added to actual or compensatory damages in order to punish malicious, outrageous, or reckless conduct and to deter similar conduct in the future. Also called exemplary damages, smart money, vindictive damages.

duress

court will not enforce an agreement that a party was forced to sign or that is the product of duress, which is the unlawful use of force or threats that overcomes a person's will so that he or she does something he or she does not want to do.

money to compensate for the loss of what was reasonably anticipated from a contract that was not performed

expectation damages; no longer allowed

what can invalidate a contract

fraud and duress

heart-balm actions

in a minority of states, one person can sue another for breach of promise to marry. such suits are called heart-balm actions because they are based on the loss of love and relationship-on a broken heart

aggrieved

injured or wronged and thereby entitled to a remedy

why is the remedy of specific performance not available

no court would force parties to enter a marriage that one of the parties no longer wants

Specific Performance

ordering the carrying out of the contract as promised

public policy

premarital agreement must not violate statutes or public policy. The principles inherent in the customs, morals, and notions of justice that prevail in a state; the foundation of public laws; the principles that are naturally and inherently right and just.

unconscionable

premarital agreements must not be this Shocking the conscience by heavily favoring one side due to the absence of meaningful choice and the highly unequal bargaining positions of the parties.

if a party lies about what he or she owns in order to obtain the consent of the other party to the premarital agreement,

the agreement will not be enforced. the false statement must be material.

the property itself is called

the corpus

compensatory damages

the main remedy for actions such as suits called heart-balm actions this is the amount of money that will restore an injured party to his or her position prior to the injury or loss

elective share

the percentage of a deceased spouse's estate that the surviving spouse can choose (elect) to receive despite what the will of the deceased spouse provided for the surviving spouse. also called statutory share, forced share. In MOST states, a surviving spouse has a right. Parties can waive the right of election so that the will of a deceased spouse cannot be overridden by the surviving spouse

one preplanning tool that might prevent divorces from becoming protracted and emotionally brutal

the premarital agreement

rebut

to attack, dispute, or refute

Careful attorneys will always try to provide maximum disclosure in order to rebut a later claim by a spouse that he or she did not know the scope of the other spouse's wealth when the premarital agreement was signed.

true

Cautious attorneys advise their clients to give their prospective spouses sufficient time to study and think about the premarital agreement before signing.

true

For a waiver of property rights to make sense, the parties must make a fair and reasonable disclose of their financial resources to each other. The disclosure must cover assets and debts or liabilities.

true

Fraud is an intentionally false statement of fact that is material, made to induce reliance, and results in harm because of the reliance.

true

In most cases, it is not duress for a party to threaten to call off the engagement if the other party does not sign the premarital agreement. This is not an unlawful threat.

true

States differ on how much disclosure is fair and reasonable.

true

To help rebut the charge of duress, some attorneys recommend that the premarital agreement be presented to the other party at least three months before the marriage.

true

To prevent a spouse from becoming destitute or a public charge, a court can force the other spouse to provide spousal support despite the no-support clause in the premarital agreement

true

contracts must be entered voluntarily

true

damages for humiliation and mental health are allowed as compensatory damages

true

not all states define a premarital agreement in the same way

true

the aggrieved party cannot be compensated for a loss of the lifestyle he or she would have enjoyed if the marriage has occured

true

the marriage itself is a contract

true

the right of a child to support may not be adversely affected by a premarital agreement

true

trust comes into existence when the creator transfers legal title of the corpus to the trustee who holds it for the benefit of the beneficiary.

true

in the commercial world, it is a tort to induce a person to break a contract with someone else

true; called interference with contract relations

malice

wanting to humiliate the other party or recklessly disregarding the upheaval and pain that the breach would cause

before you give up (waive) something in a premarital agreement,

you must know what it is you are giving up

categories of persons most likely to enter premarital agreements

• They are older. • They have substantial property that was acquired independently of each other. • They have an independent interest in a business, particularly a family-run business. • They have prior marriages. • They have children and perhaps grandchildren from prior relationships.