California Family Law Attorney
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January 18, 2010
  Am I LIABLE for my husband's CHILD SUPPORT ARREARS from his first marriage?
Posted By Thurman Arnold

Q. Can the property I owned before marriage be taken to pay for my husband's unpaid child support from his first marriage?

Latisha, Goleta, CA

A. No matter when child support, or spousal support from a prior marriage for that matter, is ordered or modified your separate property is not liable for the debt and you are entitled to be reimbursed if it comes to be used to pay such debts without your consent. Family Code section 915. Community property, on the other hand, is liable for support debts.

However, there may be a right to reimbursement by the community (of which you own half) as against the other spouse's separate property if any of their separate property existed and was therefore available to pay the debt at the time the community paid the obligation.

Author: TW Arnold

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January 18, 2010
  Am I liable for my husband's BUSINESS DEBTS?
Posted By Thurman Arnold

Q. My Husband is being sued for a business debt. I am not named in the lawsuit. Am I still liable?

Cindy, Morro Bay, CA

A. You do not need to be named in a lawsuit against your husband to collect a debt incurred by him prior to separation in order to be liable at least to the extent of your interest in the remaining community property. This debt includes any type of claims against him (e.g., a contractor being sued for defective workmanship or a lawyer being sued for malpractice).

However, your separate property cannot be held liable for such a debt, or even for "necessaries of life", unless you are named and joined in the proceedings. You may have reimbursement rights against your Husband or the community in such event.

Please see other blog answers under the "Debt" category for more information.

Author: Thurman W. Arnold III

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January 18, 2010
  Must I pay any of my husband's STUDENT LOAN if we DIVORCE?
Posted By Thurman Arnold

Q. If my Husband and I divorce, am I stuck with any of his student loan?

Jean, Carlsbad, CA

A. Hi Jean - used to surf in your neighborhood as a youngster

Most likely not.

Upon separation and dissolution of marriage, a spouse's separate loan is assigned pursuant to Family Code section 2627 and 2641. Subject to certain exceptions, the general rule is "[a] loan incurred during marriage for the education or training or a party shall not be included among the liabilities of the community for the purposes of division but shall be assigned for payment by the party."

The exception is the Court's power to divide the education debt differently if it would "unjust" not to, as where the community has "substantially benefited" from the education or the loan. A presumption exists that no such benefit is derived if the is less than 10 years old at the time the divorce is filed but that the community has substantially benefited if the loan is more than 10 years!

If the student loan money was really used to pay for groceries and rent, for instance, the court may equitably divide the it.

Author: Thurman Arnold, III

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January 18, 2010
  If my Wife and I are separated, do I have to pay the CREDIT CARDS she ran up after leaving?
Posted By Thurman Arnold

Q. My Wife and I are separated. Am I liable for her debts she incurs once we split up?

James, Blythe, CA

Credit Card Debt and Divorce

If you are a co-signor on, for instance, a credit card account you are also liable to the credit card company. The fact of divorce or separation does not itself alter your obligations with third parties (since they are not allowed to participate in the divorce and they would be prejudiced s if you could unilaterally disavow liability because of divorce).

As between you and spouse, you may or may not be obligated for one-half the debt depending on when the other spouse incurred it - if after separation, generally speaking they owe it. If the debt was incurred before separation, sometimes the debt will be assigned to one party without offset depending upon what it was for and whether they have the use of that property that the debt acquired - for instance, the furniture charged on the credit card or those car lease payments. Family Code section 910(b). Keep in mind, however, that if you move back in together (reconcile) you may lose these protections. The surest way to establish that a separation has in fact occurred is through filing a proceeding or Judgment for Dissolution or Legal Separation, although separations are suspect where parties continue to live under the same roof.

If your situation instead deals with credit card debt that existed at the date of separation, then read about Epstein credits/reimbursements.

The Court does have the power under Family Code section 2623 to divide post-separation debts for "necessaries of life of either spouse or the necessaries of life of the children of the marriage" as between the parties "according to the parties' respective needs and abilities to pay at the time the debt was incurred." This is a discretionary call for the judge, and generally debt is assigned to the party who incurs it - particularly if that party is already receiving court ordered or even voluntary child or spousal support. If the post-separation debt is not for a "necessary of life" it will assigned to the spouse who incurred the debt.

Once your divorce is final or a decree of legal separation has been entered, each spouse is solely liable for all debts incurred thereafter, including necessaries. A Judgment or Marital Termination Agreement is going to assign the debt existing as of that date as between the parties.

Author: T.W. Arnold, III, CFLS

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January 18, 2010
  Am I LIABLE for my spouse's PREMARITAL DEBT?
Posted By Thurman Arnold

Q. Am I liable for my spouse's pre-marital debt?

A. Yes, and no. Whether you are liable for debts of your spouse depends on what kind of property exists and is available to satisfy a debt. Community property is liable and therefore available to pay a debt either spouse incurs before marriage and during marriage, regardless which spouse controls that property. Family Code section 910. Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California. Family Code section 760.

Your separate property is generally not liable for a debt incurred by the other spouse before or during the marriage (your separate property is always liable for your own debts, regardless when incurred). Family Code section 913(b)(1). Separate property is all property you own before marriage and all property you acquire during marriage by gift or inheritance. Family Code section 770. Separate property also includes the rents, profits, and issues from your separate property (i.e., passive separate property increases) and "earnings and accumulations" while you are living apart. An exception to this rule limiting your separate property liability concerns "necessaries of life". Your separate property is liable for these necessaries (food, clothing, shelter, medical) for your spouse even if you are living apart, unless you are living apart under a written agreement that includes a provision for support.

It sometimes happens that a creditor manages to levy against the nondebtor spouse's separate property; if that occurs, the innocent spouse has a reimbursement claim against the community property estate, or, if there is no such estate then against the other spouse's separate property. This reimbursement right must be asserted, as mentioned below, or it evaporates. Also, if you consent to the payment from your separate property you may have made a gift of it for the benefit of the other spouse. Consent would include writing or signing the check to pay the debt from your separate property account. We are not talking here about using separate assets to acquire community property (as in making a mortgage payment); a difficult set of rules apply where property is being "acquired during marriage" which include reimbursement rights.

In order to be mostly protected you need to keep your separate property separate. If you commingle it with the other party's separate property, or with the community, a creditor cannot be expected to know what is yours verses what is both of yours. This separation of finances is always a good idea, and not just for debt purposes. As between you and your spouse if you commingle monies then you may have a right of reimbursement if you can trace the flow of funds.
The rules and consequences differ depending on whether we are talking about you versus a creditor, or you versus the spouse.

Q. Is there a time limit on exercising my reimbursement rights?

A. You have to seek reimbursement on the earlier date of (a) within 3 years of when you actually know your property was applied to satisfy the other spouse's debt or (b) during a pending dissolution or legal separation proceeding. Family Code section 920(c). Otherwise, reimbursement under these code sections is waived. Depending upon the facts, you may still have a breach of fiduciary duty claim against your spouse that survives up to the point of the dissolution.

Author: Thurman W. Arnold III

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