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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101607
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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In a California marital separations agreement each former spouce

Customer Question

In a California marital separations agreement each former spouce explicitly waived rights to separate and declared community property, however one former spouce filed claim after the MSA in a separate state for marital assets that was delcared and was awarded the assets. How does this effect the legal binding of the original MSA?
Submitted: 1 year ago.
Category: Legal
Expert:  legalgems replied 1 year ago.
Was the non-CA court aware of the binding marital separation agreement? Was the marital separation agreement incorporated into a CA decree of dissolution (divorce/legal separation)?
Customer: replied 1 year ago.
Yes, former spouce filed and ask for the TX court to recognize the CA MSA. However, this particular assets had jurisdictional binding that prevented CA from determining the rule and differed to the court with jurisdiction to decide on any "applicable" divission of the asset. Since waived right and claim it should no longer be "applicable" should it not. Applicable is the term used in the original MSA. Not reserved.
Customer: replied 1 year ago.
Even though TX divided the assets the court noted that federal jurisdictional law created an environment for disproportionate and conflicting ruling.
Customer: replied 1 year ago.
Can the original MSA now be challenged? I feel one could be held in contempt for knowing waiving right however filing claim nonetheless just by device.
Customer: replied 1 year ago.
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Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Your previous expert has opted out and I have opted in. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms. You do not clarify as to why exactly the Texas court did not recognize the California MSA. Can you please be more specific? Or at least rephrase. This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance. Also if you want a phone call - as you have indicated - you can request one using the reply as a "launch pad" to do so. You should see an option on your end. The site allows the expert to opt out of the call request, and I must respectfully ***** ***** not worry - other experts receive the request as well, and they may agree to the call. They will also have your question and my replies to build upon, so nothing will be lost.
Customer: replied 1 year ago.
In short, niether court I think understand Federal Law and title 10 rules regarding service members disposable retired pay and that it can only be divided as property, not "retirement" QDRO.The pet and resp were married 12yrs
The res is still active duty and not receiving mil ret pay.
The pet argued 50% of resp disposable ret pay at resp retirement date, essentially giving credit for service beyond the date of sep.
The resp team felt it more advantageous to argue for what ret pay would have been worth under hypothetical circumstances of ret at separation instead of attempting zero under the argument of waived rights since the court would have to rule zero or 50%.
The court recognized the waived right to benefit of continued service beyond seperation date, but still chose to award a fixed monthly figure of the asset and not recognize the overall waived rights to property as was stipulated in the MSA.
Customer: replied 1 year ago.
furthermore after testimony the judge took exercised his authority to rule on advisement and took four months to make the final rule.
Expert:  Ely replied 1 year ago.
Thank you.
So the final judgment/decision on this was November 3, 2015? And nothing has been filed since, correct?
Customer: replied 1 year ago.
That is correct.
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
the case file
Expert:  Ely replied 1 year ago.
Thank you. Please list for me the MOTIONS/PLEADINGS filed with the case since Nov 3, 2015. Example: MOTION TO STAYPetitionerReason: Asked to stay enforcement of QDRO split
Customer: replied 1 year ago.
Each motion for stay is because the resp. (active duty) was serving in Iraq for a year while the pet counsel attempted to get the court to default judge. However the resp evoked rights under soldiers sailors relief act and the court was required to wait untill his return from the war.
Customer: replied 1 year ago.
All pleadings and rules stopped after Nov 2015, no further court actions have been taken since the judgement Nov 2015. The case is at this point resolved.
Customer: replied 1 year ago.
sorry bad screenshot. here is a better list with visible dates
Expert:  Ely replied 1 year ago.
Thank you. That is what I thought. On this website, I do not always get to give good news, and this is one of these times. The court may have very well erred here. The problem is that it seems to be too late to do anything about this, based on the facts given. A party has only a limited time to appeal to the interlocutory court, or, to file for a new trial, etc. This normally is 30 days at the most. Since this happened back in November of 2015, the matter is now finalized. So the Court's error (if there was one) is moot as the decree is now final. Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty. I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.
Customer: replied 1 year ago.
Let's get back to my original question so I can give you a positive rate. Both parties explicitly waived rights to separate and declared community property in their disso in Ca. How does the Texas litigation and pet pursuit in Texas affect the CA MSA, can the original MSA be challenged?
Expert:  Ely replied 1 year ago.
Based on the facts presented, the Texas court should have recognized the CA MSA provided it was signed by both parties. However, for some reason, Texas did not. And at this point, the MSA cannot be challenged provided that it was indeed signed by both parties. If so, it would be seen as binding under Tex. Fam. Code Sec. 6.602 et seq: Sec. 6.602. MEDIATION PROCEDURES. (a) On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation.(b) A mediated settlement agreement is binding on the parties if the agreement:(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;(2) is signed by each party to the agreement; and(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.(c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.(d) A party may at any time prior to the final mediation order file a written objection to the referral of a suit for dissolution of a marriage to mediation on the basis of family violence having been committed against the objecting party by the other party. After an objection is filed, the suit may not be referred to mediation unless, on the request of the other party, a hearing is held and the court finds that a preponderance of the evidence does not support the objection. If the suit is referred to mediation, the court shall order appropriate measures be taken to ensure the physical and emotional safety of the party who filed the objection. The order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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