Division of marital estate and sole and separate property

[wldcherry1]

Yep it is me again.  Beating the same horse.  Jane's decree says

Division of Marital Estate:  The court finds that the following is a just and right division of the parties marital estate, having due regard for the rights of each party and the children of the marriage.

Awarded to the Husband "All right, title and interest in and to 27.38% percent of the United States Army disposable retired pay to be paid as a result of Jane's service in the United States Army and 27.38% percent of all increases in the United States Army disposable retired pay due to cost of living or other reasons, if, as, and when received."

Parties were married for 9 years and 2 months and Jane did 22 years before retirement.  Divorce was in TX and current case law supports that a person will not be separated from their sole and separate property.  In this case the portions of the retirement that were earned before and after the marriage.

1.  Husband claims that he is entitled to 27.38% of the entire retirement of $1500.  Which would be $410.70.

2.  Jane claims that husband is only entitled to 27.38% of the marital portion that was earned during the marriage.  Which would be $171.12.

Question:  Because what is awarded to husband is listed under Division of Marital Estate does that mean only the marital portion of the retirement is divisible?   Which would be the more likely scenario 1 or 2.

As always thank you for patience

[socrateaser]

>Question:  Because what is awarded to husband is listed under
>Division of Marital Estate does that mean only the marital
>portion of the retirement is divisible?   Which would be the
>more likely scenario 1 or 2.

The section title is only for convenience -- it has no effect on the judgment. The court awards a percentage of the entire retirement. And, although the judgment may have been wrong as a matter of law, at the time it was made, no motion for reconsideration, or appeal was filed, I'll bet, therefore, the judgment cannot now be overturned. It is Res Judicata (already decided and not subject to relitigation).