- Posted February 26, 2014 by
COLLECTING FROM MARRIED JUDGMENT DEBTORS
Under California law, there are two categories of property owned by married people:
Community Property: both spouses' income and most assets accumulated during their marriage.
Separate Property: property that is owned by a spouse before the marriage, or accumulated after a permanent separation (even if the couple hasn't filed for divorce or legal separation), or property that is: (a) purchased during the marriage with separate property funds, (b)received by a spouse during marriage as a separate gift or inheritance, or (c) made into separate property under a written agreement between the spouses. If your judgment is against only one spouse meaning that the non-debtor spouse is not named in the judgment be aware that the results of your collection efforts will be subject to these general rules:
Judgment debtor's wages: You can always collect from the debtor's wages.
Judgment debtor's separate property: You are always entitled to collect from the debtor's separate property.
Non-debtor spouse's wages: The non-debtor spouse's wages cannot be garnished without a noticed court order (CCP 706.109). For a debt incurred before marriage, you cannot collect from the non-debtor spouse's earnings if the are deposited in a separate bank account to which the debtor has no access.
Non-debtor spouse's separate property: You can collect from the non-debtor spouse's separate property if the debt was incurred during marriage for food, clothing, shelter or other necessaries of life.
Community Property: You can usually go after community property to collect your judgment. This is true even if the judgment is for a separate property debt, such as a debt incurred before marriage or after the parties separate. Thus, if you find out that the debtor and his wife own a grand piano, you can go after the whole piano even though the debtor's wife owns half as her community property share. There are several exceptions to your right to pursue community property. The non-debtor spouse's share is exempt if the debt in no way benefitted the marriage an issue that usually arises only if the spouses live apart. Finally, if the couple divorces, liens on community property will remain. For example, if a non-debtor spouse is awarded the family home as part of a divorce settlement, any real estate lien you have created will remain intact.
KB American Group suggests you seek counsel in all matters concerning litigation. This overview of the legal process is not to be construed as legal advice.