By: Scott M. Tanner, Esq.
One of the more common misconceptions in the debt collection/debt defense industry (attorneys and consumers alike) is that a debt incurred by one spouse cannot be enforced against the assets (i.e. the wages) of a nondebtor spouse. In fact, as a person’s earnings during marriage are community property (Fam. C. §297.5, 760), a nondebtor spouse’s earnings ARE GENERALLY SUBJECT TO ENFORCEMENT. That said, there is a very narrow exception to this general rule where 1) The debt at issue was incurred before the marriage; AND 2) The relevant earnings are kept in a separate deposit account which the debtor spouse does not have access to; AND 3) The nondebtor’s earnings are not commingled with other community property; AND 4) The debt at issue is not a “necessary of life” (i.e. food, shelter, clothing…etc.). Unless, this strange congruence of facts is applicable, one should expect that they are on the hook for their spouse’s debt.
All is not lost, however, an earnings withholding order alone (the typical form used to, among other things, garnish wages) will not be sufficient to reach the nondebtor spouse’s earnings, a court order upon noticed motion is necessary. CCP §706.109. This is a significant second step in the collection process that can often take several months to accomplish. What’s more, the same exemptions that apply to a judgment debtor’s earnings (i.e. for social security income or public benefits) apply to the earnings of the nondebtor spouse.
If you or your spouse have had your wages garnished, your checking account levied, or a lien placed on your home, call the experienced and knowledgeable debt defense attorneys at Thompson Steinberg.
Scott M. Tanner, Esq.
Scott M. Tanner is a partner and co-founder of Thompson Steinberg. He has extensive experience in all aspects of commercial and consumer/retail collections, debt litigation, creditor’s right, and FDCPA, RFDCPA, TCPA, and FCRA compliance and litigation. Mr. Tanner has successfully represented business entities of various sizes – ranging from small, mom-and-pop type local businesses, to major national and multinational corporations. He enjoys hanging his left hand out the car window while driving to court.
**The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This blog posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.**