Married Judgment Debtors

Under California law, there are two categories of property owned by married people:

  • Community Property: both spouses' income and most assets accumulated during their marriage.
  • Separate Property: property that is owned by a spouse before the marriage, or accumulated after a permanent separation (even if the couple hasn't filed for divorce or legal separation), or property that is: (a) purchased during the marriage with separate property funds, (b) received by a spouse during marriage as a separate gift or inheritance, or (c) made into separate property under a written agreement between the spouses

If a judgment is against only one spouse - meaning that the non-debtor spouse is not named in the judgment be aware that the results of any collection efforts will be subject to these general rules:

  • Judgment debtor's wages: We can always collect from the debtor's wages.
  • Judgment debtor's separate property: We are always entitled to collect from the, debtor's separate property.
  • Non-debtor spouse's wages. The non-debtor spouse's wages cannot be garnished without a noticed court order (CCP 706.109). For a debt incurred before marriage, we cannot collect from the non debtor spouse's earnings if they are deposited in a separate bank account to which the debtor has no access.
  • Non-debtor spouse's separate property: We can collect from the non-debtor spouse's separate property only if the debt incurred during marriage for food, clothing, shelter, or other necessaries of life.
  • Community property: We can usually go after community property to collect a judgment. This is true even if the judgment is for a separate property debt, such as a debt incurred before marriage or after the parties separate.

There are several exceptions to our right to pursue community property. The non-debtor spouse's share is exempt if the debt in no way benefited the marriage - an issue that usually arises only if the spouse live apart. Finally, if the couple divorces, liens on community property will remain. For example, if a non-debtor spouse is awarded the family home as part of a divorce settlement, any estate lien we have created will remain intact.

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