Chapter 4: Premarital, Postnuptial, and Cohabitation Agreements - Key Terms and Definitions

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.

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. Also called prenuptial agreement ("prenup") or antenuptial agreement.

Postnuptial Agreement

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

Divisible

capable of being divided.

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.

Uniform Premarital Agreement Act (UPAA)

A model statute adopted by many states that governs the legality of premarital agreements.

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.

No-Fault Divorce

A divorce that is granted without having to prove marital wrongs that caused the break-up.

Waive

To relinquish or to give up 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.

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.

Property Division

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

Sunset

Automatic termination or expiration upon a designated time or event.

severabilty clause

A clause in an agreement stating that if any part of the agreement is declared invalid, the remaining valid portions of the agreement should be carried out (enforced).

Severable

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

Contract

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

Executory contract

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

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.

Capacity

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

Statute of Frauds

A law requiring some contracts (example: one that cannot be performed within a year of it's making) to be in writing and signed by the parties to be bound by the contract.

Arm's length

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.

fiduciary relationship

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

Overreaching

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

Voluntary

By choice; proceeding from a free and unstrained will.

Duress

The unlawful use of force or threats to pressure or compel someone to do something he or she does not want to do; illegal coercion.

Rebut

To attack, dispute, or refute.

Fraud

An intentionally false statement of fact that (a) is material (b) is made to induce reliance by the plaintiff, and (c) results in harm because of the reliance. Also called deceit or misrepresentation.

Material

(1) Serious and substantial. (2) Important enough to influence the decision that was made.

Procedural fairness

Sufficient financial disclosure, sufficient opportunity to consult with others, voluntariness, and the absence of duress and fraud. Informed consent.

Substantive fairness

Equitable in the sense that the terms are satisfactory and mutually reasonable.

Unconscionable

(1)Shockingly unfair or unjust. (2) Shocking the conscience by heavily favoring one side together with an absence of meaningful choice and a highly unequal bargaining posture of the parties.

Community property

Property in which each spouse has 50 percent interest if the property was acquired during the marriage other than by gift. will, or interstate succession (inheratance) to only one of the spouses.

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.)

postnuptial agreement

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

Separation agreement

An agreement between married persons who have separated (or are about to separate) that can cover support, custody, property division, and other terms of their separation and likely divorce. Also called marital settlement agreement (MSA).

Coverture

The legal status of a married woman whereby her civil existence for many purposes merged with (was covered up by) that of her husband. Also called unity of person, doctrine of oneness, spousal-unity rule, unity of identity.

Cohabitation

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

Adultery

voluntary sexual intercourse between a married person and a person who is not his or her spouse.

Fornication

voluntary sexual intercourse between unmarried persons

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.

meretricious

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

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 marriages

A marriage entered in compliance with statutory formalities ( e.g. obtaining a marriage license, having the marriage performed by an authorized person before witnesses). A marriage other than a common law marriage. Also called conventional marriage, formal marriage, statutory marriage.

Palimony

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.

Remedy

The means by which a right is enforced or the violation of a right is prevented, redressed, or compensated for.

Express Contract

An agreement with all the important terms explicitly stated

implied-in-fact contract

A contract that is manifested by conduct and circumstances rather than by words of agreement. A contract whose existence could be inferred by a reasonable person, even in the absence of an express agreement to create it.

Tacit

Understood without being openly stated; implied by silence or conduct other than words.

gratuitous

Performed without expectation of payment.

implied-in-law contract

An obligation created by the law to avoid unjust enrichment in the absence of an express or implied contract creating the obligation. Also called a quasi contract.

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.

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.

Trust

A property arrangement by which its creator ( the settlor or trustor) transfers property (the corpus) to a person (the trustee) who holds legal title for the benefit of another ( the beneficiary or cestui que trust).

beneficial interest

A right to benefit from something (e.g. property) whose legal ownership is in another.

Operation of Law

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

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.

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.

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).