Q: What constitutes an unenforceable or void contract?
Neither representing attorneys or judge adhered to the Federal Military Spouse Protection Act regarding community property. I would of been under the 1982 rules. I did not know about this federal act at the time.
A: Your question contains a mixture of somewhat complex issues and illustrates a conflict between federal and state law. The first issue is preemption. Preemption occurs when exclusive federal jurisdiction and law on specific areas of law prevent action under state jurisdiction and laws, for instance, immigration, bankruptcy and military law. Prior to enactment of the Serviceperson Military Spouse Protection Act in 1982, state courts could not directly and effectively address federal military retirement and disability rights in state divorce cases due to the doctrine of preemption. The Act removed that limitation and allowed state courts to allocate a spouse's military retirement or disability pay as a property right.
The second issue is community property. Virginia is a common law state with equitable distribution in divorce, not a community property state with a 50-50 split. Nevertheless, someone in Virginia might have owned or had an interest in community property created in another state, such as California or Texas. The question then becomes how that should be divided in equitable distribution in Virginia.
The third issue is the enforceability of contracts. Contracts may not be enforceable for various reasons: unconscionability, duress, fraud, illegal purpose, void as against public policy, and others.
Your question really cannot be answered with this unusual juxtaposition of preemption, community property and contract enforcement issues.
Your lawyer is supposed to represent your interests; the judge and opposing counsel have no such obligation. The possibility that a party did not get every possible benefit or address every possible legal right does not render a contract or a decree unenforceable. Negotiated settlements involve give and take and do not necessarily represent a tit for tat division of each and every asset or debt, or realization of every possible legal right. In some cases, a spouse will give up or waive an interest in a particular asset, such as a pension or retirement plan, in return for some other benefit such as greater support, or the retention of their own pension or retirement plan. If you believe your lawyer did not adequately represent your interests, then you should consult with a malpractice attorney about your rights and options.
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.