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Ask S. Kincaid Your Own Question
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I had a rather complicated question reference statute of

Customer Question

Hi I had a rather complicated question reference statute of limitations for division of military retirement. I was divorced in 2001 in Louisiana. The only portion of the divorce decree that mentions property states "It is further ordered, adjudged, and decreed that reciprocal preliminary injunctions issue herein preventing the parties from disposing of, alienating or encumbering any property of community nature." In 2012 the divorce decree was moved to VA for enforcement of child support. I currently reside in TX where I am currently retiring. So I could argue jurisdiction to move to TX if it is advantageous...thanks I know that is a lot!
JA: OK. The Family Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: yes
JA: What advice did they give you?
Customer: So far I have got multiple answers on whether the language allows division of my retirement 15 years later
JA: Is there anything else important you think the Family Lawyer should know?
Customer: no
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Family Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Family Law
Expert:  S. Kincaid replied 1 year ago.
That is the strangest language I've seen with respect to community property in my twenty years of practice. Are you sure that there is no other reference to property issues?
Customer: replied 1 year ago.
Actually I generally get a perplexed response when I have sought legal advise on this issue. The judgement of divorce is only 1 and 1/3 pages long. This is the only additional community property related language: "It is further ordered, adjudged and decreed that Kelly Shretzman Zimmerman is hereby awarded the use of the 2000 Hyundai Elantra. It is further ordered, adjudged and decreed that Frank Zimmerman is hereby awarded the use of the 1994 Ford Explorer." Over the years lawyers in NY, TX, and VA have been consistent in advising to let the matter lie for the time being. Now that I am retiring I am positive that this will go to court here in the near future. I desire to posture myself as best as possible by selecting the most advantageous state (VA versus TX). And I am curious if this obscure language prevents here from gaining a percentage of my retirement. We were not married ten years so DFAS is not involved. Also next week I have to select my SPB.
Customer: replied 1 year ago.
I though it might help if I attached both pages of decree.
Expert:  S. Kincaid replied 1 year ago.
1) Was the case actually transferred to Virginia, or was only ENFORCEMENT addressed in Virginia? With child support, it is usually the latter, in which case, you would have to enforce the order where it was originally made, in Louisiana. I would think it would be beneficial to you to have it addressed elsewhere because I imagine that another state judge would feel uncomfortable changing anything done in the original divorce. But I doubt hat is possible. Child support enforcement is a special situation where that frequently happens, but other provisions are usually addressed in the court of origin. Should she file something in Louisiana, you could file a Motion to Change Venue. If she's no longer in Louisiana, it might be granted. If you are positive she will file, you may want to file the motion now. I doubt VA is an option if nobody lives there, unless the entire case was truly transferred there.2) The obscure language might be in your favor since it does not decide what is community property and what isn't. I'm assuming not all of your retirement is community property if you were married less than ten yearsv- is it? Most states do not allow division of assets that were not listed in the divorce decree unless there has been fraud. The states that explicitly address omitted assets are generally community property states like Louisiana and Texas, although there is no Louisiana case law I can find on point. There are ways your ex could bring up the issue other than the "omitted asset" claim. She could ask for clarification if the judgment is ambiguous. What else can I answer for you?
Customer: replied 1 year ago.
Attached is the legal document that transferred the original LA order to VA. It is a request for VA registration of foreign support order VA Code 20-88.67. My ex-wife lives in Philadelphia. Does this mean the whole order is not transferred? I am confident I can get jurisdiction changed to VA or TX. I definitely do not want to traverse the LA court system. My lawyer in VA thinks it has a strong case in VA courts, we are currently fighting a request for modification of child support to continue in adulthood.
Expert:  S. Kincaid replied 1 year ago.
That shows that the order was registered and enforced in Virginia, not transferred to Virginia. I cannot see how to get it transferred to Virginia if nobody lives there now, but if your lawyer in Virginia thinks it's possible, maybe s/he has a way I've not thought of. I recommend you ask under what theory he thinks the case could be transferred to Virginia. I would think Pennsylvania would have a better chance of taking jurisdiction than Virginia since she lives there. I do agree that child support can be addressed in Virginia, just not property division.