Community Property

I am not a lawyer, I am a judgment and debt referral expert (Judgment and Collection Agency Broker). This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.

What if you have a judgment against a married debtor, but not against their spouse? Of course, your judgment debtor drives a nice car, lives in a nice house, and you know their spouse recently inherited a large sum of money.

What can one do if the spouse of the debtor did not commingle funds in any way, and had separate banking accounts, etc. What if they did not use their inheritance to pay any community property bills? Can you have the sheriff levy the separate property inheritance to repay your judgment?

Separate property, including an inheritance, of one spouse is usually not available to any creditors of the other debtor spouse. In California, a community property state, it is completely proper for non-debtor spouses to maintain separate assets. In California, only the spouse's share of the community property is available to satisfy a judgment.

Any financial planner would advise a non-debtor spouse to keep their accounts separated, when there are judgments or debts against the debtor-spouse. For a good discussion about laws about this, look up "In re Haines, 33 Cal. App. 4th 277."

A basic rule of community property, is that all property acquired during a marriage is community property unless there is a specific separate property exception. This means there is a general presumption that property acquired during the marriage by either spouse, other than by gift or inheritance, is community property, unless it is traceable to a separate property source.

The general presumption of community property can be overcome with any credible evidence, including tracing an asset to a separate property source, or showing an agreement or clear understanding between parties that an asset was acquired as a gift, or should be considered separate property.

Often, married couples share checking accounts and commingle income and debts. When that is the case, California, CCP 700.160(b)(2) allows a community property bank account to be levied, with 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, that shows that the debtor and the non-debtor are married, and that the property you want the sheriff to levy, is indeed community property. Such evidence could be marriage records, banking, utility, property records, etc.

When one does not have enough strong evidence, one may need to think outside the box. One idea is 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 judgment debtor's name on it. If they both come back as "mail is delivered" to 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".

http://www.JudgmentBuy.com - with the fastest judgment and debt solution, where Judgments and debts quickly get recovered by the very best - matched to your debtor.

Mark Shapiro - Judgment and debt Broker - the best judgment expert in the world, with the best quality free leads for enforcers, collection agencies and contingency collection attorneys.