Back in 2009, I won a small claims case against debtor but the judge never gave him a set time frame for him to pay. Debtor is currently MIA and I have tried locating him with no luck. I know he is married, but don't know if he got divorced already. How can I go about finding out if they got divorced? Lets say he is still married (State of CA), may I have his wife's wages garnished? I have located where she lives and works. Their marriage was all a setup to get her citizenship while he was in the military and for him to get more money from the govt for being married while in active duty. He is such a thief and I want to get my money he owes me.
I do not know where he currently lives. He sent me an email in March 2011 asking how much I would take to clean the slate. I told him the entire value of what is owed. He never replied which led me to file for interest for 2 years now. I paid an internet site to get information on him and it was a dead-end. I also did a credit history and found out he owes money to lots of companies as well. I do know thru FB & MySpace he is within local area and a member to Vetaran's post and his former HS but I get dead-ends when seeking a physical address. I also did internet search for his wife and she's in a different county from where I filed and won my case (LA County). Do I file to have her wages/bank levied in LA County or do I have to go to San Bernardino County? How about filing abstract of judgment? He use to live in Santa Barbara (Ventura County) and his father lives in Bakersfield (Kern County). May I file an abstract of judgment in all 4 counties?
Debt Collection Attorney
I must disagree with all my colleagues here. I garnish spousal wages of nondebtor spouses all the time. The direct authority is in CCP 706.109, and also in 695.020, fam codes 760 and 910. (if anyone's interested)
The basic legal basis for this is that community property is liable for debt of either spouse, and earnings of either spouse during marriage are community property. Pretty straightforward when you think about it.
So yes you can garnish IF (1) They are still married; AND (2) They were married at time of judgment.
You must do this on noticed motion. The small claims motion process is easy though, go to the judicial council form website, and use an SC-105. Find the codes I mentioned and put them into an attachment to the motion and ask the court to garnish the spousal wages. As I said I do it all the time it works. The only defense to it is "we aren't married anymore" or "the judgment was from before we got married" (if they are smart enough to know that and/or bring that up, usually wont figure that defense out unless they lawyer up)
Richard O Evanns
I am an attorney, licensed only in CA. Any opinions stated herein are based on very limited facts, and should not be used as a basis to take actions that may affect anyone's substantive legal rights. My answering this or any question creates no attorney / client relationship.
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Chapter 7 Bankruptcy Attorney
You can only garnish the wages of a person you sued. Not their Wife, not their Mother, nor their Brother or Sister. Divorce records are usually available online or at the Clerk's office of the Court with either the Husband or Wife lived.
You could probably found out more about where the debtor is working if you could get a copy of his credit report. It might be necessary to hire an investigator to obtain this information. Collecting a debt isn't as easy as it seems.
Hope this perspective helps!
Debt Collection Attorney
The court will never give a debtor a set time frame to pay the judgment. The judgment is good for 10 years and can be renewed for another 10 years almost any time prior to its expiration.
I suggest you read the California Courts Self-Help website regarding the tips to collect a small claims judgment. http://www.courts.ca.gov/1014.htm
I agree with Mr. Evanns that community property, along with the husband/debtor's separate property, can be used to satisfy the judgment. You can garnish wife's wages if you obtain a court order to do so. Pursuant to CCP 700.160, you can also levy wife's bank account so long as you submit to the county sheriff a spousal affidavit along with the instructions and writ of execution. You can also levy his or their other personal property.
To find his/their income and assets, you can conduct a judgment debtor exam for him, her (as a 3rd party) or both. The small claims court has a form you can fill out and mail to him, or you can get a court order that requires him to come to court for a judgment debtor exam. The in-court appearance will apply more pressure on him to pay or settle than written questions.
Last, don't forget to file an abstract of judgment (real property lien) in the county in which he/they live. The lien is good for the life of the judgment (10 years) and will attach not only to his separate property interest and/or their community property interest in the real property that he or they own now, but also to any real property he or they may acquire in the future in that county.
The Family Code defines separate property vs. community property. The law can be complex.
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