Home > Research Legal Advice > Debt Collection > If I am legally separated, and my husband signed personal guarantees, an...
Asked about 1 year ago - Calabasas, CA
Flaglawsuit that has spun out of control. It is going to the appelate court. I have been legally separated. I did not sign any personal guarantees, but somehow they have me involved.
Of course they can come after you-they did! If any if the debt was incurred during the marriage it is community debt.
"Legally separated" is not always clear in California. if you have a JUDGEMENT of legal separation AND the debt was incurred after it was ENTERED, you have a defense to liability, but it will still be necessary for you to incur attorney fees to make the case. Your remedy is to sue your husband for indemnification. (Of course you wont get anything.) Absent that judgement there may still be community property from the creditors' perspective. This is a very muddy area of the law, and the litigation about it will not be cheap.
Long story short... you have a problem. Can you negotiate with hubby to keep you and your assets out of this?
California Family Code section 910 provides that after a physical separation (i.e., no court decree of separation is needed), each party's debts are separate debts (excepting certain spousal and child support obligations), unless the other party personally guarantees the debt. The date of separation is after the last time when the parties lived together as spouse and spouse. In other words, if there is a temporary separation and then a reconciliation, all of the debts during the temporary separation become community. The divorce petition contains a question asking for "Date of Separation". This date may be very important, as the date of separation will be put into the divorce decree. Collection agencies always argue that until the court actually grants a divorce, or until a divorce petition is filed, all debts are community debts. However, Family Code section 910 provides otherwise.
If you were legally separated at the time your husband incurred the obligation without your knowledge or consent, then you shouldn't be on the hook for his actions. Nevertheless, It is always a good idea for anyone your situation to at least have a consultation with a local attorney to review all the parties' rights, options and obligations so wise, informed decisions can be made going forward regarding the case. You can find attorneys in your area by searching among the profiles here on AVVO. Good luck!
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