Q. My Wife caused a car accident. We were underinsured. Am I liable if the wreck occurred before we separated?
Sam, Aptos, CA
A. Personal injuries and property damages caused during marriage get a
different treatment under the California Family Code.
FC Section 1000 sets up a preference for which funds, community or separate, are used
to satisfy the debt. If the liability occurred while the married person
was performing an activity for the benefit of the community, like going
to work or to the food store, the liability is first applied to the community
estate and if that is exhausted, the balance is applied to your wife's
On the other hand, if she was going to see her lover, the liability is first applied to her separate estate and then the excess, if any, still due is applied to the community.
In either event, there is still a right of reimbursement from the tortfeasor spouse, but this right expires after 7 years.
This kind of outcome should be distinguished from crimes committed by a spouse during marriage.
A local case decided in the appellate courts in 1996, handled by one of my father's former law partners, dealt with dividing a $150,000 liability owing to the Palm Springs Tramway on account of monies embezzled by the Wife as a ticket taker over a number of years (embezzlement is both an intentional tort and a crime). She spent all the money for the benefit of the community, although her husband did not know of the source of the money at the time. Not surprisingly this led to divorce, and the ruling was that both spouses owed one-half of the $150,000 settlement, but only the wife owed the income taxes and the attorney fees for defending the criminal and civil cases. (Marriage of Bell (1996) 49 Cal.App.4th 300). Husband had directly benefited from these ill-gotten gains, and he wasn't protected because he did not participate in the theft itself.
Author: TW Arnold