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“(a) would it be more prudent for her to file, if it looks like it is necessary, prior to our becoming married?” California is a community property state. Therefore, any property that you personally acquire during marriage will be considered community property, and can be taken to satisfy any of your spouse’s debts – even those debts she acquired prior to the marriage. Below are the applicable California statutes:
760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
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.
To an extent, even your wages can be used to satisfy her debts, unless you take certain precautions (see the applicable statute below):
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.
To sum up the above with regard to your wages, your wages cannot be garnished. However, if your wages are put into a joint checking account, then they are fair game for your wife’s creditors. You can prevent that by keeping your wages in a separate account that she does not have access to.
The botXXXXX XXXXXne is that if she were to file for bankruptcy prior to marriage, then her debts can be wiped out and you wouldn’t have to worry about any of the above. Therefore, it may be in your best interests to have her file first. If you marry her first, then community property can be used to satisfy those debts. Even if she file for bankruptcy protection after the marriage, the community property will become part of the bankruptcy estate and can be used to satisfy her debts.
“(b) could she file for bankruptcy for herself after our becoming married?” If you did marry first, she could file for bankruptcy alone, but again, the community property becomes a part of he bankruptcy estate. Here is the applicable law:
11 USC § 541. Property of the estate
(a) The commencement of a case under section 301, 302, 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.
(2) All interests of the debtor and the debtor’s spouse in community property as of the commencement of the case that is--
(A) under the sole, equal, or joint management and control of the debtor; or
(B) liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor’s spouse, to the extent that such interest is so liable.
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