diannels said:
I live in CA and I want to get married, but I don't want to take on my husband-to-be's financial responsibilities. Is there any way to get around this?
My response:
I would strongly suggest that you both see your attorney to have a prenuptual agreement drawn up and signed, PRIOR to your marriage - - which, by definition is an agreement entered into before a marriage takes place, and only operates in the event of a marriage having taken place.
Property held by a husband and wife must fall into either of two categories: community property or separate property. Because the attributes of these two classes of property are vastly different, classification of property as separate or community has critical consequences. The respective rights of husband and wife to manage and control property during the marriage vary depending on whether the property is separate or community. Rules governing the division of property on divorce differ depending on the property’s classification as separate or community. The right of creditors to reach property in satisfaction of debts requires a determination of the property character as community or separate. Therefore, an understanding of the rules regarding the characterization of property is crucial.
At first blush characterization would appear to be a simple proposition. Property owned before marriage or acquired after marriage by gift, bequest, devise, or descent is separate property. [Fam C §770] Property acquired during marriage while the parties are domiciled in California is community property. [Fam C §760] However, beneath the simple definition of community property set forth in the statutes are a host of legal factors that must be considered in applying the statutory definition.
Liability for pre-marital debts
In addition to the division of assets, the court is required to characterize debts as separate or community and assign them to the parties. [Fam C §2551] As a general rule, during marriage community property is liable for the debts incurred by either spouse before marriage or during marriage prior to separation, regardless of which party has management and control of the property and regardless of whether both spouses are parties to the debt or the judgment for the debt. [Fam C §910] However, in the division of community property, debts incurred by one spouse prior to marriage must be assigned to that spouse without offset. [Fam C §2621] Additionally, the separate property of a spouse is not liable for the debts incurred by the other spouse prior to marriage. [Fam C §913(b)(1)]
Debts before marriage include obligations for child support and spousal support from a previous marriage. [Fam C §915(a)] While community property is liable for those obligations during a subsequent marriage, the community is entitled to reimbursement if community property is used and there was "non-exempt separate income" available for satisfaction of the obligation. [Fam C §915(b); In re Marriage of Williams (1989, 3rd Dist) 213 Cal App 3d 1239, 262 Cal Rptr 317] In Williams, the husband’s delinquent support obligation from a prior marriage was satisfied from the proceeds of the sale of community-owned real property, which sale took place following the date of separation of the husband and wife. The appellate court found that the husband was obligated to reimburse the community $19,249.20 which had been taken from the escrow proceeds following the sale of the property.
A spouse can exempt his or her community property earnings from liability for the other spouse’s pre-marital debts by maintaining the earnings in an account over which the other spouse has no right of withdrawal and that is not commingled with other community property other than insignificant amounts. [Fam C §911]
Good luck to you.
IAAL
