[WSBARP] Off topic Legal Research Need

[Eric Nelsen]

Jim-- I may be wrong, but I think there's a 3-year S/L on challenge to a settlement on those grounds, so it might be too late.

Assuming no S/L problem, that sounds like a very, very uneven split of assets at divorce, and might meet the requirements for a "substantively unfair" property settlement that could be unwound. It's not a slam dunk because it never is with divorce--the standard is for a "fair and equitable" division of assets that keeps in mind each parties' future earning potential and likely financial needs. So it's possible to have a "fair and equitable" division that is this lopsided, if Irene had no means of support, no prospect of future earnings, and had been married for as long as they were.

However, the transfer of half the inheritance which is clearly Fred's separate property is unusual; the court in theory has the power to award separate property of one spouse to the other, but in practice does it very rarely.

Re CalPers, are you serious it was truly 100% of the pension to Irene? Did Fred not earn any more retirement accrual after divorce? And a QDRO was entered at time of divorce that the CalPers administrator accepted? If so, I'm not sure what could be done there either; ownership of the CalPers pension is now 100% Irene and unwinding that seems unlikely. If it's possible at all, it's part of the same general action to unwind the entire divorce settlement. I would be in a hurry to get that action completed so a new QDRO could be entered reversing the previous one.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Jim Doran
Sent: Sunday, October 15, 2017 12:52 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Off topic Legal Research Need

I have a matter with a legal question(s) in an area that I do not regularly practice in.

Here is the issue in a nutshell:  Fred was married to Irene for 20 years or more.  they lived a middle class lifestyle.  Fred was a truck driver.  Irene was a spendthrift that sent them through a chapter 7 several years before their split up.  They lived in a modest home and had no extravagant assets.

Several months before their divorce, in 2012, Fred received an inheritance of $1.6 million from his mother.  Just prior to the divorce Fred agreed to give Irene $800,000 from his inheritance.  In the divorce proceedings Fred did not have a lawyer and Irene did.  Fred signed documents agreeing to give Irene the $800,000.  He also signed a settlement agreement that gave Irene his full CalPers pension.  There is a discrepancy in the court filing regarding the pension.

The issue now is that Fred is very ill and likely not going to live very long.  His current wife, Dawn, has been very good for Fred and has cared for him as a nurse (which she was professionally) for many months.  Dawn wants the pension to be reassigned by Irene to her.  CalPers needs either an agreement from Irene or a Court order.

The legal questions seem to be two:
1) Was the "gift" from Fred to Irene at the time of divorce unconscionable, inequitable and amenable to be set aside and a more appropriate property settlement and spousal maintenance arrangement be imposed that reflects Irene's normal and customary lifestyle, especially since this fund was clearly Fred's separate property?

2) Does the fact that Fred did not have an attorney during the divorce proceedings and when he gifted the substantial funds to Irene enough to cause a Court to re-open the matter?

That is the nut of it.

Do any of you have a contact for me to talk to on this matter?  I may have to hire someone who has already gone through this kind of a scenario.  I need some case law to support a motion to modify the decree and settlement agreement to be a bit more equitable.  If we can scare Irene in to just releasing the CalPers pension that would be enough.

Jim Doran
James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20171016/33d79dc3/attachment.html>