I am not a lawyer, I am a judgment broker. This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.
What if you have a judgment against a married debtor, but not against their spouse? Of course, your judgment debtor drives a nice car, lives in a nice house, and you know their spouse recently inherited a large sum of money.
What can one do if the spouse of the debtor did not commingle funds in any way, and had separate banking accounts, etc. What if they did not use their inheritance to pay any community property bills? Can you have the sheriff levy the separate property inheritance to repay your judgment?
Separate property, including an inheritance, of one spouse is usually not available to any creditors of the other debtor spouse. In California, a community property state, it is completely proper for non-debtor spouses to maintain separate assets. In California, only the spouse’s share of the community property is available to satisfy a judgment.
Any financial planner would advise a non-debtor spouse to keep their accounts separated, when there are judgments or debts against the debtor-spouse. For a good discussion about laws about this, look up “In re Haines, 33 Cal. App. 4th 277”.
A basic rule of community property, is that all property acquired during a marriage is community property unless there is a specific separate property exception. This means there is a general presumption that property acquired during the marriage by either spouse, other than by gift or inheritance, is community property, unless it is traceable to a separate property source.
The general presumption of community property can be overcome with any credible evidence, including tracing an asset to a separate property source, or showing an agreement or clear understanding between parties that an asset was acquired as a gift, or should be considered separate property. If one spouse sues and gets a judgment, that judgment is usually the separate property of that spouse.
In California, debtor spouses wages can be levied. See code of Civil Procedures section 695.020, you only need one writ in the name of the Judgment Debtor. For the wage garnishment against the non-debtor spouse, you merely submit a copy of the court order authorizing the wage garnishment along with your instructions to the Sheriff and the original Writ. Generally, CCP 700.160(b) does not apply, so do not bring it up.
Q: What if the judgment debtor is receiving spousal support from their ex, can that spousal support be levied?
A: You need to find out if there is any transmutation agreement between the spouses. This is a big deal changer if there is. Also, in California, real estate can be an exeption to the community property laws, see Evidence code 662, which trumps the CCPs. The presumption of community property can be rebutted in court. A judge can decide that one spouse owns an asset as their sole and separate property.
Overcoming the community presumption may be accomplished by proffering evidence of (1) an agreement transmuting community to separate property, (2) tracing the property to a separate property source, (3) applying presumptions relating to the form of title by which the property is held, (4) by evidence that the acquisition was by gift, will, or inheritance, or (5) that it was made after the parties separated. Haines, 33 Cal. App.4th at 290.
With either an intangible levy under 700.170, or an assignment order, there is nothing special about spousal support payments, treat them the same as rental property income, royalties, or anything else. It is an income stream that can be enforced against like any other income stream.
In the matter of C. L. Vineyard v Elizabeth Anne Sisson, 223 Cal.App.3d 931 (1990) 272 Cal.Rptr. 914, the appeals court has affirmed that support payments are not exempt to satisfy other judgments
It does not matter that the temporary spouse is a co-debtor. You can levy and garnish wages in the same manner as you would if there was no “ex” involved. You must provide a declaration and a court order respectively.
Often, the burden is on the judgment debtor to prove a property is not a commmuity property. Often, married couples share checking accounts and commingle income and debts. When that is the case, California, CCP 700.160(b)(2) allows a community property bank account to be levied, with a declaration as simple as this:
I, –, judgment creditor (or assignee of record), declare as follows:
On –, a judgment was entered in the favor of Plaintiff(s) against the judgment debtor — in — COUNTY Superior Court case # –.
I am the Assignee of Record in this matter. I am over 18 years of age. I have personal knowledge of the facts herein, except as to those facts stated to be known upon information and belief, and as to those facts, I believe them to be true. If called upon to testify, I could and would competently testify thereto.
I have full knowledge and believe to be true that judgment debtor — is married to –.
As permitted by California Code of Civil Procedure 700.160(b)(2), I hereby request a levy be placed on the bank account of –, who I believe to be married to and the spouse of Debtor –.
I declare under penalty of perjury and the laws of the State of California, that the above is true and correct.
Your Date and Signature.
With such a declaration, make sure to include any evidence you have, that shows that the debtor and the non-debtor are married, and that the property you want the sheriff to levy, is indeed community property. Such evidence could be marriage records, banking, utility, property records, etc.
You will need to go to the calendar clerk of the court, and schedule a hearing and get that date, and include it in your motion papers. This must be personally served on the spouse of the judgment debtor, but can be served by mail on the judgment debtor.
When one does not have enough strong evidence, one may need to think outside the box. One idea is to send the local Postmaster the USPS “new address” form. Send one with the non-debtor spouse’s name on it, and send another one with judgment debtor’s name on it. If they both come back as “mail is delivered” to the same address, that can be evidence. If either spouse is on Facebook or another social network, check if there are any self-proclaimed “married to’s”.
If they court makes any kind of error, such as making the spouse an additional judgment debtor on the judgment, when all you asked for was permission to levy the spouse’s wages, get those kinds of errors fixed ASAP.