Those are his separate property debts and they cannot come after you for them if you marry him.
Mr. Larkin is a CA licensed bankruptcy attorney and is located in San Diego. His response here does not constitute legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter in question. Many times the questioner may leave out details which would make the reply unsuitable. Mr. Larkin strongly advises the questioner to confer with an attorney in their own state to acquire more information about the specifics of their case.
No. You are not responsible for the debts your spouse incurred before you married them just because you got married. If you actually co-signed for the loan, you are on the hook because you signed. Because California is a community property state, after marriage each spouse is responsible for their own debts and the debts incurred by their spouse for "community" purposes. This is usually everything (credit cards, car loans, medical debts, etc.) except debts associated with separate property owned by the spouse before marriage or received by the other spouse during the marriage through inheritance.
You and your future spouse can opt out of California community property law with a prenuptial agreement.
Yes and No: The debt is your spouse's, but during the marriage the creditor can come after your Community Property. Here's the basic rules, summarized from Family Code Sections 910 to 915:
* Creditors can reach all Community Property (defined below) for either spouse's premarital debts (with an important exception: see below). Of course, they can also reach the debtor’s Separate Property for his/her premarital debts -- but they cannot touch the non-debtor spouse’s Separate Property IF it is carefully kept separate.
* Here's the important exception: The non-debtor spouse can protect his/her earnings from creditors for the other spouse's premarital debts IF the non-debtor's earnings are held in a separate account that cannot be reached by the nondebtor spouse
Bottom line: If your intended has premarital debts (including child support debts) (1) Keep your separate property assets in a separate account in your name only, and don't mix them up with any other assets, and (2) put your earnings in a second separate account in your name only. Make sure your spouse has no access to either account.
Will a prenup help? Yes and no. Remember, a prenup is an agreement between just the two of you. It will not protect you from creditors or other third parties who might make a claim on you. BUT, if things fall apart in your marriage, a prenuptial agreement or an agreement during marriage that both spouses will assume all responsibility for their own premarital debts could be useful in a dissolution settlement. It also could provide documented evidence for a civil law suit, such as Breach of Contract.
(*Under California Community Property law, acquisitions before marriage, after permanent separation, or during marriage by gift, devise or bequest are presumed to be Separate Property (SP), even if changed in form. All other marital acquisitions are presumed to be Community Property (CP). These presumptions can be rebutted by tracing, prenuptial agreements, or marital transmutations.)
Disclaimer: This information about California law and procedures is based on the limited facts provided by the person asking the question. It is not offered as advice to that person or any other reader and does not form an attorney-client relationship.
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