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RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 40991
Experience:  30 years as a family law lawyer .
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Here is the second question - I incurred a civil liability

Customer Question

Hello again,Here is the second question -I incurred a civil liability during the marriage in the state of California. The funds utilized were for the benefit of the community property, which is the home. I am trying to convey to my family attorney that this liability needs to be "CLEARLY" a community debt. But his response was this:"Regarding the $300,000 civil liability – This can be resolved by an agreement of the parties (unlikey) or at trial. These are the only two ways to resolve the liability. We can bifurcate the case and set the issue of the $300,000 liability for trial. The general law is that all debt incurred during the marriage, which benefited the community, is community property debt. There are exceptions when the money was obtained by illegal means and not spent on the community. How was the bulk of the money at issue in the civil liability spent?"I do not want this issue to go into trial and waste unnecessary funds. I would like to squash this issue by perhaps providing my attorney with distinct references to other cases where civil debt was considered a community debt. He is always wanting to go into trial, which I can understand will help him and his business.
Submitted: 10 months ago.
Category: Family Law
Expert:  RayAnswers replied 10 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Expert:  RayAnswers replied 10 months ago.

Under California Family Code section 910 the community (meaning both spouses) is liable for all debts incurred during the marriage and prior to separation. It does not matter whether the debt was incurred by one spouse for his or her own benefit or for the family. It also doesn’t matter whose name appears on the bill or the credit card statements. If the debt was incurred during the marriage and before separation, it is a community debt and both spouses are equally liable. Debt incurred after separation may be either community or separate debt, depending on the circumstances.

Expert:  RayAnswers replied 10 months ago.

If the debt was incurred during the marriage , specifically the civil liability then it is community debt and should be treated a such during property division.The key would be proving the debt benefited both parties of the marriage.

In other words, if I borrowed $300k to gamble it away then even though it is community debt the other spouse did not benefit and court likely assigns it to me.On the other hand if I borrowed or incurred the debt to refinance or remodel the house that's clearly community and the court would divide it equally here in California.

I appreciate the chance to help you today.Thanks again, please let me know if you have more follow up.

Expert:  RayAnswers replied 10 months ago.

Law for reference

FAMILY.CODE
SECTION 910-916

910. (a) Except as otherwise expressly provided by statute, thecommunity estate is liable for a debt incurred by either spousebefore or during marriage, regardless of which spouse has themanagement and control of the property and regardless of whether oneor both spouses are parties to the debt or to a judgment for thedebt. (b) "During marriage" for purposes of this section does notinclude the period during which the spouses are living separate andapart before a judgment of dissolution of marriage or legalseparation of the parties.911. (a) The earnings of a married person during marriage are notliable for a debt incurred by the person's spouse before marriage.After the earnings of the married person are paid, they remain notliable so long as they are held in a deposit account in which theperson's spouse has no right of withdrawal and are uncommingled withother property in the community estate, except property insignificantin amount. (b) As used in this section: (1) "Deposit account" has the meaning prescribed in paragraph (29)of subdivision (a) of Section 9102 of the Commercial Code. (2) "Earnings" means compensation for personal services performed,whether as an employee or otherwise.912. For the purposes of this part, quasi-community property isliable to the same extent, and shall be treated the same in all otherrespects, as community property.913. (a) The separate property of a married person is liable for adebt 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 adebt incurred by the person's spouse before or during marriage. (2) The joinder or consent of a married person to an encumbranceof community estate property to secure payment of a debt incurred bythe person's spouse does not subject the person's separate propertyto liability for the debt unless the person also incurred the debt.914. (a) Notwithstanding Section 913, a married person ispersonally liable for the following debts incurred by the person'sspouse during marriage: (1) A debt incurred for necessaries of life of the person's spousewhile the spouses are living together. (2) Except as provided in Section 4302, a debt incurred for commonnecessaries of life of the person's spouse while the spouses areliving separately. (b) The separate property of a married person may be applied tothe satisfaction of a debt for which the person is personally liablepursuant to this section. If separate property is so applied at atime when nonexempt property in the community estate or separateproperty of the person's spouse is available but is not applied tothe satisfaction of the debt, the married person is entitled toreimbursement to the extent such property was available. (c) (1) Except as provided in paragraph (2), the statute oflimitations set forth in Section 366.2 of the Code of Civil Procedureshall apply if the spouse for whom the married person is personallyliable dies. (2) If the surviving spouse had actual knowledge of the debt priorto expiration of the period set forth in Section 366.2 of the Codeof Civil Procedure and the personal representative of the deceasedspouse's estate failed to provide the creditor asserting the claimunder this section with a timely written notice of the probateadministration of the estate in the manner provided for pursuant toSection 9050 of the Probate Code, the statute of limitations setforth in Section 337 or 339 of the Code of Civil Procedure, asapplicable, shall apply.915. (a) For the purpose of this part, a child or spousal supportobligation of a married person that does not arise out of themarriage shall be treated as a debt incurred before marriage,regardless of whether a court order for support is made or modifiedbefore or during marriage and regardless of whether any installmentpayment on the obligation accrues before or during marriage. (b) If property in the community estate is applied to thesatisfaction of a child or spousal support obligation of a marriedperson that does not arise out of the marriage, at a time whennonexempt separate income of the person is available but is notapplied to the satisfaction of the obligation, the community estateis entitled to reimbursement from the person in the amount of theseparate income, not exceeding the property in the community estateso applied. (c) Nothing in this section limits the matters a court may takeinto consideration in determining or modifying the amount of asupport order, including, but not limited to, the earnings of thespouses of the parties.916. (a) Notwithstanding any other provision of this chapter, afterdivision of community and quasi-community property pursuant toDivision 7 (commencing with Section 2500): (1) The separate property owned by a married person at the time ofthe division and the property received by the person in the divisionis liable for a debt incurred by the person before or duringmarriage and the person is personally liable for the debt, whether ornot the debt was assigned for payment by the person's spouse in thedivision. (2) The separate property owned by a married person at the time ofthe division and the property received by the person in the divisionis not liable for a debt incurred by the person's spouse before orduring marriage, and the person is not personally liable for thedebt, unless the debt was assigned for payment by the person in thedivision of the property. Nothing in this paragraph affects theliability of property for the satisfaction of a lien on the property. (3) The separate property owned by a married person at the time ofthe division and the property received by the person in the divisionis liable for a debt incurred by the person's spouse before orduring marriage, and the person is personally liable for the debt, ifthe debt was assigned for payment by the person in the division ofthe property. If a money judgment for the debt is entered after thedivision, the property is not subject to enforcement of the judgmentand the judgment may not be enforced against the married person,unless the person is made a party to the judgment for the purpose ofthis paragraph. (b) If property of a married person is applied to the satisfactionof a money judgment pursuant to subdivision (a) for a debt incurredby the person that is assigned for payment by the person's spouse,the person has a right of reimbursement from the person's spouse tothe extent of the property applied, with interest at the legal rate,and may recover reasonable attorney's fees incurred in enforcing theright of reimbursement.

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