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Divorce before bk
charset="windows-1251"
The answer cannot be determined without an extensive review of marital
assets and other information.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Matthew Gary Evans
Sent: Saturday, January 16, 2010 3:46 AM
To: bk@nacba.org; cdcbaa@yahoogroups.com
Subject: [cdcbaa] Divorce before bk
Central District of CA:
Prospective client is married. Her husband owns a failing real estate
company. H is facing about 6 pending lawsuits against him personally and
against his firm (a corporation). W (prospective client) wants to know if
filing for divorce will sever her from liability for Hs debts, or if she
needs to file bk anyway. W has nothing to do personally or professionally
with Hs real estate co.
Is a spouse liable post-divorce for debts incurred by the other spouse
during marriage?
____________________________________
Law Office of Matthew Gary Evans
Matthew Gary Evans, Esq.
16 North Marengo Avenue, Room 219
Pasadena, California 91101
Tel.: (626) 405-9448
Fax: (626) 768-7565
Cell: (213) 842-6645
Email: matthew@matthewgary
evanslaw.com
www.matthewgaryevanslaw.com
www.matthewgaryevanslaw.net/Bankruptcy
please visit my blog at matthewevanslaw.
wordpress.com
Member: California State Bar, American Bar Association, Consumer Attorneys
Association of Los Angeles, Central District Consumer Bankruptcy Attorneys
Association, National Association of Consumer Bankruptcy Attorneys, Pasadena
Chamber of Commerce
NOTICE: This message is intended only for the individual named. If you are
not the named addressee please do not disseminate, print, or copy this
e-mail. Please notify the sender immediately by reply e-mail if you have
received this e-mail by mistake and delete this e-mail from your system.
Thank you.
charset="windows-1251"
Message
The answer cannot be
determined without an extensive review of marital assets and other
information.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
The basic rules are laid out pretty nicely in the Family Code - Section 910 et seq (called General Rules of Liability).
Remember (for newbies), a debt is owed by the person who contracted for the debt - doesn't matter whether you are married or not. My wife is not liable for my office lease - she did not sign it - End of story. (There is an exception for "necessaries of life," see 914 below.) The PROPERTY interest of a person is subject to seizure according to the Family Code. My wife's half of our community property is liable to be seized by my landlord if I don't pay the rent.
Section 910:
(a)Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
(b)"During marriage" for purposes of this section does not include the period during which the spouses are living separate and apart before a judgment of dissolution of marriage or legal separation of the parties.
Section 911:
(a)The earnings of a married person during marriage are not liable for a debt incurred by the person's spouse before marriage. After the earnings of the married person are paid, they remain not liable so long as they are held in a deposit account in which the person's spouse has no right of withdrawal and are uncommingled with other property in the community estate, except property insignificant in amount.
Section 913:
(a)The separate property of a married person is liable for a debt incurred by the person before or during marriage.
(b)Except as otherwise provided by statute:
(1)The separate property of a married person is not liable for a debt incurred by the person's spouse before or during marriage.
(2)The joinder or consent of a married person to an encumbrance of community estate property to secure payment of a debt incurred by the person's spouse does not subject the person's separate property to liability for the debt unless the person also incurred the debt.
Section 914:
(a)Notwithstanding Section 913, a married person is personally liable for the following debts incurred by the person's spouse during marriage:
(1)A debt incurred for necessaries of life of the person's spouse while the spouses are living together.
(2)Except as provided in Section 4302, a debt incurred for common necessaries of life of the person's spouse while the spouses are living separately.
(b)The separate property of a married person may be applied to the satisfaction of a debt for which the person is personally liable pursuant to this section. If separate property is so applied at a time when nonexempt property in the community estate or separate property of the person's spouse is available but is not applied to the satisfaction of the debt, the married person is entitled to reimbursement to the extent such property was available.
(c)(1)Except as provided in paragraph (2), the statute of limitations set forth in Section 366.2 of the Code of Civil Procedure shall apply if the spouse for whom the married person is personally liable dies .
(2)If the surviving spouse had actual knowledge of the debt prior to expiration of the period set forth in Section 366.2 and the personal representative of the deceased spouse's estate failed to provide the creditor asserting the claim under this section with a timely written notice of the probate administration of the estate in the manner provided for pursuant to Section 9050 of the Probate Code, the statute of limitations set forth in Section 337 or 339, as applicable, shall apply.
>
> No, unless as a matter of support, the divorce court orders your pc to pay the debts. And then, your client would not owe the debts to the creditors (discharged), but could be sued under 523 by nonfiling spouse for nondischargeability to nonfiling spouse.
>
> dennis
>
> --- On Sat, 1/16/10, Matthew Gary Evans wrote:
>
>
> Subject: [cdcbaa] FW: [NACBA-BK] Divorce before bk
> To: bk@..., cdcbaa@yahoogroups.com
> Date: Saturday, January 16, 2010, 3:55 AM
>
>
>
>
>
>
>
>
> Follow-up/clarifica tion question:
>
> I know (or at least I think I know) that the community estate remains liable for the pre-divorce debts. Im asking specifically about the wifes personal liability for any deficiency that the community was unable to cover in terms of paying the debts.
>
> Central Dist CA.
>
> Thanks.
>
>
> ____________ _________ _________ ______
> Law Office of Matthew Gary Evans
> Matthew Gary Evans, Esq.
> 16 North Marengo Avenue, Room 219
> Pasadena, California 91101
> Tel.:
>
The post was migrated from Yahoo.
Central District of CA:
Prospective client is married. Her husband owns a failing real estate
company. H is facing about 6 pending lawsuits against him personally and
against his firm (a corporation). W (prospective client) wants to know if
filing for divorce will sever her from liability for H's debts, or if she
needs to file bk anyway. W has nothing to do personally or professionally
with H's real estate co.
Is a spouse liable post-divorce for debts incurred by the other spouse
during marriage?
____________________________________
Law Office of Matthew Gary Evans
Matthew Gary Evans, Esq.
16 North Marengo Avenue, Room 219
Pasadena, California 91101
Tel.: (626) 405-9448
Fax: (626) 768-7565
Cell: (213) 842-6645
Email: matthew@matthewgaryevanslaw.com
www.matthewgaryevanslaw.com
www.matthewgaryevanslaw.net/Bankruptcy
please visit my blog at matthewevanslaw.wordpress.com
Member: California State Bar, American Bar Association, Consumer Attorneys
Association of Los Angeles, Central District Consumer Bankruptcy Attorneys
Association, National Association of Consumer Bankruptcy Attorneys, Pasadena
Chamber of Commerce
NOTICE: This message is intended only for the individual named. If you are
not the named addressee please do not disseminate, print, or copy this
e-mail. Please notify the sender immediately by reply e-mail if you have
received this e-mail by mistake and delete this e-mail from your system.
Thank you.
The post was migrated from Yahoo.