Gloucester, VA asked in Contracts and Divorce for Virginia

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.

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1 Lawyer Answer
James H. Wilson Jr.
James H. Wilson Jr.
  • Glen Allen, VA
  • Licensed in Virginia

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.

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