How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask socrateaser Your Own Question

socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33541
Experience:  Retired (mostly)
Type Your Family Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

Family Law question:What are the rules in a Marital Settlement

Customer Question

Family Law question:

What are the rules in a Marital Settlement Agreement where one of the spouses Value Appreciations rights is frozen during the time they were married from 1999-2009 due to IRS regulations and the date of separation was August 1, 2005 divorce final on Sept 2006! The ex-wife is now claiming that the Value Appreciations Rights were not transferred in to the MSA, but in her bankruptcy hearing she said she had transferred her right to the Value Appreciations rights to my husband at the time of the MSA. My husband and she entered into a default judgment and my husband was the only one who did the exchange of the disclosures and filed a proof of services. The bankruptcy is now coming after my husband for the Value Appreciations rights that were frozen. This was a unfunded plan and because it was frozen it earned to interest and was paid out under the Erisa Rule 6 as a bonus.
We have a copy of a statement of what the bonus would have been at the time of the MSA in 2005/2006 had it not been frozen. Why can’t the court grant her just what it would have been at the time of the MSA if it had been frozen instead of them try to get what his company gave him in 2010.
She has already said in the Trustee Complaint that she transferred her right to them over to my husband. Plus they need to consenter what he got after he was divorce as sole property and there not.
I’m okay with paying her is was at the time of the MSA-Unfortunately it will belong to the BK Trustee, but there wanting everything for it not being mention in the MSA. But she did do her part as will when she didn’t comply with the exchange of the disclosures.
Is there anything that can help us?
Submitted: 1 year ago.
Category: Family Law
Expert:  Fran-mod replied 1 year ago.
Hi, I'm a moderator for this topic. I've been working hard to find a professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 1 year ago.


Please find soon :-(

Expert:  wendy-Mod replied 1 year ago.
Thank you for your patience. We will continue the search for a Professional for you.

Regards,
Wendy
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.

I am both a practicing Bankruptcy Attorney and a Divorce Attorney. I would try to assist you. However, I need clarification. Your statements below need correction. There appears to be several spelling/typographical errors. I do not want to guess what the words are. So, it would be helpful if you could correct them and resubmit. Thank you for your cooperation.




"She has already said in the Trustee Complaint that she transferred her right to them over to my husband. Plus they need to consenter what he got after he was divorce as sole property and there not.
I’m okay with paying her is was at the time of the MSA-Unfortunately it will belong to the BK Trustee, but there wanting everything for it not being mention in the MSA. But she did do her part as will when she didn’t comply with the exchange of the disclosures."
Customer: replied 1 year ago.

Value Appreciations rights Contract Reads that the Plan was frozen due to IRS 2004 regulations Plans units frozen were from 1999-2004 (Date of Separation was Aug 1, 2005)


A 2006 Value Appreciations rights Contract reads the effected date of this plan is from Jan 1, 2005 grants were given in Dec 2005 (Grants given from Dec 2005 to Nov 2009 were sole property of my Husbands)


Ex-Wife Open up a OSC case in family law Jan 11, 12 claiming unconcealed asset were not transferred to the marital settlement agreement (VARs Plan)


Her bankruptcy trustee came after my husband for all the units granted to him in the VARs Plan (including sole property), but in the Trustee’s complete the Debtor tells the trustee that she transferred her rights to the VARs at the time of the MSA. So how were they concealed if they were transferred?


The Plan was not dictated by Erisa Rule 6 as a bonus.


The company takes what your salary is and grants you units based on your salary and calculates it by the Value of the company to give you an award/bonus.


My question how can I get them to only grant her ½ of what the 2005 VARs Plan Statement was. The Plan was frozen at the time of the MSA and earned no interest.


The word bonus was part of their MSA.


 

Expert:  Phillips Esq. replied 1 year ago.

Thank you for the information:

Value Appreciations rights Contract Reads that the Plan was frozen due to IRS 2004 regulations Plans units frozen were from 1999-2004 (Date of Separation was Aug 1, 2005)

A 2006 Value Appreciations rights Contract reads the effected date of this plan is from Jan 1, 2005 grants were given in Dec 2005 (Grants given from Dec 2005 to Nov 2009 were sole property of my Husbands)

Ex-Wife Open up a OSC case in family law Jan 11, 12 claiming unconcealed asset were not transferred to the marital settlement agreement (VARs Plan)

Her bankruptcy trustee came after my husband for all the units granted to him in the VARs Plan (including sole property), but in the Trustee’s complete the Debtor tells the trustee that she transferred her rights to the VARs at the time of the MSA. So how were they concealed if they were transferred?

The Plan was not dictated by Erisa Rule 6 as a bonus.

The company takes what your salary is and grants you units based on your salary and calculates it by the Value of the company to give you an award/bonus.

My question how can I get them to only grant her ½ of what the 2005 VARs Plan Statement was. The Plan was frozen at the time of the MSA and earned no interest.

The word bonus was part of their MSA.

Response: Your husband's best recourse here is to go back to the State Court (after obtaining Relief from the Automatic Stay from the Bankruptcy Court) and get the State Court to declare what the ex-wife share of the contract would be, which to my understanding would be from January 1, 2005 to November 30, 2005. The Bankruptcy Trustee can only be assigned interest that the Debtor is entitled to and not more.

It appears that the ex-wife is trying to muddle up the water here and cost your husband some grief. Your husband needs to be prepared to show documents from his company that VAR was frozen for quite some time (1994 to 2004) and the ex-wife is only entitled to a very small portion of the VAR (January 2005 to November 2005).

Customer: replied 1 year ago.

The VARs Plan also reads that it would not dictated by the Department of Labor (DOL) Erisa Rules and would be paid in Aggregate Method.


Non-Erisa Plans are not covered by California Family Law Section Code 755.


 


VARs were not a Retirement Plan nor a Stock Plan

Expert:  Phillips Esq. replied 1 year ago.
Thank you for the information.

I stand by my previous response.
Customer: replied 1 year ago.

What about her statement in the BK courts that she transferred her rights to the VARs at the time of the MSA?

Expert:  Phillips Esq. replied 1 year ago.

What about her statement in the BK courts that she transferred her rights to the VARs at the time of the MSA?

Response: That should actually would be used against her in the State Court. If she is now claiming to have transferred the rights, the Trustee cannot go after that interest as either preference payment or fraudulent transfer as the transfer was made due to dissolution of marriage. See 11 U.S.C. Section 547 subsection (c) and Section 548:

http://doney.net/bkcode/11usc0547.htm

http://doney.net/bkcode/11usc0548.htm

Customer: replied 1 year ago.

 


Trustee and Debtors Attorney are fighting to keep this case in the Bankruptcy Courts. It’s a new Judge and he does not know the rules. They feel I gave him too much evidence and I’m forcing the Judge to decide on what the VARs were when I give him that match to read. It’s almost a form of extortion.


We were told it didn’t matter what is right. The Trustee job in to get money back for his creditors.


Even if this case is Family Law issue. We were told to offer more money and maybe a settlement can happen. When I told them we didn’t have money to give up front. I was told it was worth it to find the money and make this go away!!!

Expert:  Phillips Esq. replied 1 year ago.

Trustee and Debtors Attorney are fighting to keep this case in the Bankruptcy Courts. It’s a new Judge and he does not know the rules. They feel I gave him too much evidence and I’m forcing the Judge to decide on what the VARs were when I give him that match to read. It’s almost a form of extortion.

We were told it didn’t matter what is right. The Trustee job in to get money back for his creditors.

Even if this case is Family Law issue. We were told to offer more money and maybe a settlement can happen. When I told them we didn’t have money to give up front. I was told it was worth it to find the money and make this go away!!!

Response: The case should be settled in the State Court. That is the proper venue. So, you should continue to attempt to get the case back to the State Court because the Court is very familiar with the issues in the case and would be in the better position to adjudicate the issues and render proper decision.

Customer: replied 1 year ago.

 


I filed a Motion and a Demand for Jury Trial of Rights under Local Rule 7038-1 & Local Rule 7039-1 on 12/11/12


 


I’m told that it wont do me any good because it is up to the Judge if he grants me a jury Trial in our Adversary Proceedings and must likely her wont!!!


 


I feel that my husband ex-Wife commitment fraud when she filed for Bankruptcy because at the time she file is was making $5,300.00 a month court order spousal support $2,500.00 and child support $2,000.00 and she works $800.00 from work I guess…. I found out she really makes $2800.00 a month from employer and her true debt was $19,525.00, but she added her sister for $95,000.00 totaling $114,525.00 in order to pass the means test by saying she had income of $800.00 a month. The trustee never verified her income even though I brought it up at the bankruptcy hearing. They still allowed her to be discharged.


 


My question is how many motion am I allowed filing in a Adversary Proceedings? If a Judge makes a ruling can I file a motion to Vacate? Or once he makes up his mine that’s it?


 


I have one of my hearings on 12/18/12 and everyone has already said that I didn't file my motion with in 28 days.... I filed on 11/29/12 and hearing is on 12/18/12, I let my attorney go because I could not afford him on 11/26/12. He never filed a montion for me.


 


So will they not even allow me to talk?

Expert:  Phillips Esq. replied 1 year ago.
I will opt out and give another Expert the opportunity to further assist you.

Please do not respond to me because doing so would delay a response from another Expert.
Expert:  socrateaser replied 1 year ago.

Hello,

 

I've answered a question for you before, re the VARs. I'd like to try to assist, but I need some ground rules. Your questions are extremely complex, and I just cannot afford to spend hours researching and answering an endless stream questions for the very small amount that I receive as compensation for my answers. So, if you would please limit each Q&A to a single question, and then open another with my userid ("ToCustomer), so that the system will alert me to your next question, then I can get paid for each individual answer, and each of us can get what we need from this transaction.

 

That said, you asked:

 

My question is how many motion am I allowed filing in a Adversary Proceedings? If a Judge makes a ruling can I file a motion to Vacate? Or once he makes up his mine that’s it?

 

A: An adversary proceeding in bankruptcy court is a full-blown federal lawsuit with all of the same rules as any other lawsuit, except that there is no trial by jury, and the case is heard by the bankruptcy judge (with limited exceptions). You can file as many motions as you want, on whatever subject matter you wish, as long as it's related to the lawsuit.

 

I have one of my hearings on 12/18/12 and everyone has already said that I didn't file my motion with in 28 days.... I filed on 11/29/12 and hearing is on 12/18/12, I let my attorney go because I could not afford him on 11/26/12. He never filed a motion for me.

 

 

A: I assume that you mean you filed a "motion to alter or amend judgment." If the motion is filed untimely, it's considered a motion for relief from judgment (FRCP 60(b)). Which doesn't mean you can't be heard at a hearing, so I don't know what you've been told, but if I'm understanding correctly, then you may have been misinformed.

 

Hope this helps.

 

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("ToCustomer), and the system will send me an alert. Please Click the following link for for for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33541
Experience: Retired (mostly)
socrateaser and 5 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

How can I convince the Bankruptcy court to use the California Family Law code on date of separation in 2005 regarding my husband’s Value Appreciation Rights called VARs?


 


1st the plan was frozen at the time of the MSA.


 


2nd she transferred her rights to the VARs Plan at the time of the MSA


 


3rd they didn’t vest until 2009 and then the company terminated the plan and the way the plan worked was base off your base pay x’s the value of the company they would grant you units and then calculate x’s whatever the committee would grant you. This was not a stock option and it was a plan that did not full under the Erisa Rules


We have the Plan statement from 2005.


 


Why can’t they use that and divide that?

Expert:  socrateaser replied 1 year ago.

If you can show the bankruptcy court that there was a "transmutation" agreement (i.e., an agreement between spouses transforming the VARS from community to separate property, which was signed during marriage), or that the court ordered the VARS divided at final judgment, then some portion of the VARS is not part of the bankruptcy estate, and the trustee can sell the VARS and divide the proceeds between each party according to the agreement or court order.

Otherwise, the VARS are omitted community property, which is liable for the debts of the debtor incurred before or during marriage.

 

That's really all there is to the analysis, though the technical rules from the bankruptcy code and case law are ridiculously complex.

 

Hope this helps.

 

 

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
< Last | Next >
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney and Counselor at Law

    Satisfied Customers:

    6424
    27+ years legal experience. I remain current in Family Law through regular continuing education.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Lawyer

    Satisfied Customers:

    6336
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    5987
    I provide family and divorce law advice to my clients in my firm.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    5773
    JD, 15 years legal experience including family law
  • http://ww2.justanswer.com/uploads/BrianTMayer/2010-01-06_200119_BM.jpg Brandon M.'s Avatar

    Brandon M.

    Family Law Attorney

    Satisfied Customers:

    3810
    Attorney experienced in all aspects of family law
  • http://ww2.justanswer.com/uploads/TU/TUSA/2012-6-6_55219_test.64x64.png Thoreau (T-USA)'s Avatar

    Thoreau (T-USA)

    Lawyer

    Satisfied Customers:

    2634
    Attorney