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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 28096
Experience:  Attorney with experience in family law.
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I am in the middle of getting a divorce in Los Angeles

Customer Question

Hello, I am in the middle of getting a divorce in Los Angeles county and need to divide the community debt between myself and my former spouse. Currently I live in Texas. All of my credit card accounts are in collections. I have no idea how to calculate the community debt because I used the credit cards (all in my name) before and after the marriage and every month I would pay my bills with my student loans, so there's no clear way for me to determine what the community debt is. My divorce lawyer recommends I call the credit card companies for statements from before the marriage and when we separated to determine the community debt. I don't want to do that though because I haven't paid my bills since December 2014 and I have been avoiding communicating to my debtors, hoping to get a bankruptcy or await the statute of limitations. I don't know how to handle my debt issue for my divorce. Please help!
Submitted: 1 year ago.
Category: Family Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.

Most credit card companies will allow you to access statements online, so it may be possible to get the information without calling them. However, if you've been married for more than 7 years, you'd never be able to get statements from before the marriage. Another option is to get statements from the entire duration of the marriage and go through every transaction. If the credit card company won't allow you to access statements online because you're delinquent, your lawyer can subpoena copies directly from the credit card company. But that really is the best way to determine how much of the debt is community property.

If you want to ask that your spouse be ordered to pay half the community debt, you have the burden of proving how much it is. And under the Best Evidence Rule, I'm sorry to say, that means you're taking a huge risk by not calling and getting those statements. The judge could actually REFUSE to allow you to admit any other evidence of the amount charged on the cards if you have the ability to get them and chose not to do so (regardless of your reasons). Cal. Evid. Code, Section 1522.

You could pull bank statements from the checking account your student loans were deposited into and calculate the amount of payments made to the credit cards, but that's really ineffective unless you were paying the balance in full each month. At least then you could see how much of your student loans were being used to pay community debt and ask that your spouse be required to pay half that amount. But you could wind up receiving far less than you're entitled to. And there's a strong possibility that the judge won't allow the evidence without the actual statements.

Calling and requesting statements will have no effect on filing for bankruptcy if that's what you want to do. And asking for the statements will not reset the statute of limitations as long as you do not acknowledge the debt, agree to pay, or admit that you owe the money. Talk to your lawyer about what you stand to lose without submitting those statements so you can decide if it's worth the risk.

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