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Spousal Debtor Exams
This article is my opinion about court examinations of the spouses, live-in partners, or intimate or business partners of judgment debtors. What should you put in a declaration to accompany your points and authorities for a third-party examination about judgment debtor assets?
I am not a lawyer, however I know anything can happen in court, no matter how perfect the words are on your proposed order to examine a third-party about the debtor's judgment debt. More than once, a commissioner or judge has decided a third-party cannot be examined - even if they own a house with the judgment debtor, and have raised three kids with them.
In some states, when a couple refers to themselves as husband and wife, have raised kids together to adulthood, and bought a house together, the wife can retain her maiden name for her drivers license, and claim she is not liable for her husband's debts.
How can you determine if a couple is married or not? Even if they told you that they were married to each other, that does not mean that it is actually true. If they bought a house together, and you check the vesting on the grant deed, it might show if they chose to divulge that they were married at that time.
Even if there is evidence they were married at one time, it does not mean they are still married today. If you know that they were confidentially married in a certain county, you can obtain a copy of their confidential marriage license for a fee, if you have a copy of your signed court order to get that information.
You can get the court order with an ex-parte motion, which requires a declaration, memo of points and authorities, and a proposed order, and have it served on them. If you found real property records in the recorder's office that shows them taking title to real property as "husband and wife", then you may find a sympathetic judge who will sign your order, because you are asking the judge only to confirm what you already know and have proof of.
Another way to get marriage information is to examine both the "husband and wife" separately at a judgment debtor and third-party examination at the court. One of them may admit to having been confidentially married at their examination.
In California, statues 708.120, and a few others, list the requirements for the required declaration, memorandum of points and authorities, and a proposed order. You must include the basic judgment information and a description of the debtor property you think the third-party examinee may be in possession of, and/or the reason you think the third-party examinee might owe the debtor $250 or more.
In California, third-party examination requests can be somewhat informal, you can describe the records they have in their possession, or that information they might have, is worth at least $250. You can also mention CCP 700.130, and document that the third-party has first hand knowledge of the judgment debtor's finances, and may be examined as a witness. Remember to include witness fees if they are required in your state.
My papers have never been rejected, even when I cannot specifically point to $250 worth of property. Of course, anything can happen, so throw in the CCP 700.130 witness legal basis too, because that allows for examination of anyone and everyone who might have first-hand knowledge of the judgment debtor's finances.
A third-party ORAP declaration is not difficult. If they are the wife or husband of the debtor, make sure to mention shared community property (especially in community property states). If you know about any specific property, make sure to list it specifically. You will get an ORAP lien on the property you list in your declaration, only if you mention it with sufficient specificity.
For an example of the wordings of a third-party examination order, please see our article at: http://www.judgmentbuy.com/ThirdPartyExaminations.html
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