Legal to sue spouse? CA state

[downwithdogs]

Hello all,

I hope I have put this in the right section - if not feel free to move it.

I have searched but have been unable to find an answer.

My question is whether it is legal in California for credit cards companies/third party collectors (unsecured debt) to go after the spouse's assets or wages if the spouse was not on the credit contract agreement. Or can they only go after the person on the agreement?

I guess the question would pertain to family in general but this particular situation is with a husband and wife. My Father opened/used the credit card in his name but is now in default. He is worried that the creditor/collectors will come after his wife.

Any help would greatly be appreciated!

[calawyer]

Here is a link on the issue you posed:

http://www.bills.com/blog/credit-card-debt-and-community-property-law/?rbc=bills+ssp

[downwithdogs]

Thank you for your quick response! It was very helpful.

[debtorshusband]

As you might guess from my username, this is a question I am very interested in, and I would like to share some of the information I've found.

First, since California is a community property state, many (especially Collection Agencies) will jump to tell you one spouse is liable for the other's debts. However, it is not that straightforward.

Here are some quotes from the book Money Troubles: Legal Strategies to Cope With Your Debts, 9th edition, by Robin Leonard

Chapter 3.

A. Who Owes What Debts in a Community Property State?

“Most debts incurred during the course of marriage and before permanent separation are joint debts for which both spouses are liable. There is an exception to this rule: If the creditor had no knowledge of the marriage and was looking only to the spouse who incurred the debt for payment, only the spouse who incurred the debt is liable for the debt.”

Chapter 17.

“In community property states, debts incurred during marriage (and before permanent separation) are joint debts for which both spouses are liable – unless the creditor didn’t know about the marriage and was only looking for payment from the spouse who incurred the debt”

After all, each spouse is legally entitled to obtain credit in their own names. So it seems that a certain level of proof by the creditor/junk debt buyer is needed to show a spouse is liable. They might have to provide the credit application to show what income they were basing the extension of credit on.

I once found another article on-line, which is apparently no longer available. I've posted it here before in its entirety; you can find it by searching. Here are the first couple lines:

Signing contracts in a community property state

April 4th, 2000

By Michael R. King

QUESTION: SINCE ARIZONA IS A COMMUNITY PROPERTY STATE, I DON'T NEED BOTH SPOUSES TO SIGN THE CONTRACT, RIGHT?

ANSWER: IF YOU REALLY WANT TO BE ABLE TO COLLECT FROM EACH SPOUSE, YOU BETTER GET BOTH SIGNATURES.

He goes on to cite a couple cases, which are very interesting reading.

Good luck.

DH

[downwithdogs]

I understand the community property state issue but my question regarding your post is that you mention collection agencies but not an original creditor. Is there a seperate issue with regards to the original creditor?Especially since we know that most collections agencies do not obtain the debt by most legal means anyway.

[debtorshusband]

The sources I quoted both refer specifically to a "creditor", which I take to mean the Original Creditor. And of course, if the debt is sold to a third party (A "Junk Debt Buyer"), the third party doesn't get more rights than the OC.

My own mention of a Collection Agency was in recollection of uneducated drones at third party Collection Agencies being quick to "wave the flag" of community property in my face in an effort to convince my I was liable for my wife's debts, without condition.

Regards,

DH