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