Sole Property And Community Property
I am not a lawyer, I am a debt and judgment matchmaking expert (Judgment and Collection Agency Broker)
. This article is my opinion, from my experience in California, and laws vary in each state. If you want a strategy to use or legal advice, you should contact a lawyer.
What if you have a money judgment against a married judgment debtor, however not against their spouse? Naturally, your judgment debtor drives a nice car, lives in a big house, and you know their spouse recently inherited a huge amount of cash.
What can you do if the spouse of the judgment debtor did not commingle funds in any way, and had separate banking accounts, etc. What if they did not use the inheritance to pay any community property bills? Can you have the sheriff levy the separate property inheritance to pay your judgment?
Property that is separate, including inheritances, of one spouse is not usually available to a creditor of the other debtor spouse. In a community property state, such as California, it's very normal for non-debtor spouses to do this. In California, only the spouse's share of the community property is available to pay off.
Any financial planner could advise a non-debtor spouse to keep their accounts separated, if there are judgments or debts against the judgment debtor-spouse. For a good discussion about laws regarding this, look up "In re Haines, 33 Cal. App. 4th 277".
A basic rule of community property, is that all property acquired during marriage is community property unless there are specific property exceptions. This means there is a general presumption that property acquired during marriage by either spouse, other than by gift or inheritance, is community property, unless it can be traced to a separate property source.
A general presumption of community property can be disputed by any valid evidence, including tracing assets as a separate property source, or showing an agreement or clear understanding between parties that an item was acquired as a gift, or should be considered separate property.
Often, married couples commingle income and debts and share checking accounts. When that is the case, California, CCP 700.160(b)(2) permits a community property bank account to be levied, using a declaration as simple as this:
SPOUSAL DECLARATION
I, --, judgment creditor (or assignee of record), declare as follows:
On --, a judgment was entered in the favor of Plaintiff(s) against the judgment debtor -- in -- COUNTY Superior Court case # --.
I am the Assignee of Record in this matter. I am over 18 years of age. I have personal knowledge of the facts herein, except as to those facts stated to be known upon information and belief, and as to those facts, I believe them to be true. If called upon to testify, I could and would competently testify thereto.
I have full knowledge and believe to be true that judgment debtor -- is married to --.
As permitted by California Code of Civil Procedure 700.160(b)(2), I hereby request a levy be placed on the bank account of --, who I believe to be married to and the spouse of Debtor --.
I declare under penalty of perjury and the laws of the State of California, that the above is true and correct.
Your Date and Signature.
With such a declaration, make sure to include any evidence you have, to show that the judgment debtor and the non-judgment debtor are married, and that the property you want the sheriff to levy, is actually community property. Such evidence could be marriage records, utility, banking, property records, etc.
When one does not have enough strong evidence, one may have to think "outside the box". One idea would be to send the local Postmaster the USPS "new address" form. Send one with the non-debtor spouse's name on it, and send another one with debtor's name on it. If they both come back as "mail is delivered" at the same address, that can be evidence. If either spouse is on Facebook or another social network, check if there are any self-proclaimed "married to's".
by: Mark Shapiro
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