California Family Law Attorney
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January 18, 2010
  Are my EARNINGS during marriage LIABLE for my spouse's PREMARRIAGE DEBTS?
Posted By Thurman Arnold

Q. Are my earnings liable for my spouse's debts incurred before marriage?

A. Earnings during marriage are not liable for your spouse's debt incurred before marriage so long as these earnings when received are held in a deposit account which is not also in your spouse's name, and as to which they have no right to withdraw funds.

Once these monies go into the common pot, however, they become available to satisfy debts incurred prior to marriage. Family Code section 911.

Your earnings are liable for debts the other spouse incurs after the date of marriage, because the earnings are community property and debts incurred during marriage are community debts.

The only way to avoid this is by way a prenup or post-nup established before the debt is incurred (which agreement may limit or preclude the creation of community property).

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January 17, 2010
  What Is a LEGAL SEPARATION in California?
Posted By Thurman Arnold

Q. What is meant by "separation" in California, and is legal separation a good idea?

A. There are two contexts in which the word separation is used in divorce and family law in California: (1) Legal Separation and (2) physical separation. Both are important, but in practice the concept of physical separation has a far huger impact on people's lives.

A Decree of Legal Separation in California is identical for all purposes to a Decree of Dissolution of marriage, with one critical distinction: A judgment for legal separation leaves the marriage (and the marital "bonds") intact. The parties remain married, and so neither can remarry. But for all other purposes, the marriage is effectively dissolved.

There are religious and personal reasons why two people might want to do this, and there are some practical reasons involving most notably health insurance but sometimes job related benefits why two married persons might choose this over divorce.

A decree of legal separation cuts off the creation of community property thereafter, which includes liability for community debts as well. It is possible to divide all property between the parties, to fix all rights and entitlements to spousal support, and to deal with custody, visitation, and child support issues, and yet remain legally married. It requires the consent of both parties, because if either party objects to a legal separation or seeks a dissolution instead, a Judgment of Legal Separation cannot be granted. Even if the parties are in agreement concerning a legal separation, neither is precluded from later seeking to terminate marital status through a subsequent dissolution action. If the parties have reached a legal separation agreement, or if the Court enters a Judgment of Legal Separation, a subsequent action does not undo any of that.

This is a fairly unusual outcome. In my substantial experience, very few parties have been in agreement on this way of resolving their joint affairs and it doesn't usually make sense unless there are unique health, insurance, or religious or familial reasons for not dissolving the marriage.

Need more information about the twists and turns of Legal Separation?

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2 entries found. Viewing page 1 of 1.