San Jose Divorce Debt Reimbursement Lawyer - John S. Yohanan

Just as property acquired during the marriage belongs to both spouses equally, debts incurred before separation are the responsibility of both spouses as well. Creditors don't care who pays a debt; they are usually entitled to collect the entire amount from either spouse.

In many property settlement agreements the spouses agree that the party with the higher income will pay off all or most of the marital debt in exchange for receiving a larger share of the community property. But even in these cases, the apportionment of marital debt can raise difficult questions.

An important detail under California law also complicates the question of debt responsibility in divorce. If a divorce spouse pays down a marital debt - that is, one that existed prior to separation - with income earned after separation, which is separate property, the paying spouse is entitled to reimbursement for that payment from community property. Half the value of the payment would be deducted from the value of the marital estate and credited to the paying spouse.

The classic example of this situation is when a husband moves out of the marital residence upon separation, but continues to make the mortgage payments, unless he waives his right to reimbursement in writing, or the spouses agree that the payments should be counted as child support, spousal support, or both. Careful planning should be undertaken as in certain circumstances the court could order such payments as payments "in lieu of support" and not reimbursable. Prenuptial agreements can also alter the rights of the spouses in a reimbursement situation.

Other debt reimbursement issues can involve the use of community property to pay off separate debt, as when the wife pays off the husband's premarital debts to improve their credit score. Additionally, separate property - such as a premarital 401(k) account, or an inheritance - is sometimes used to pay off community debts, and the paying spouse can be eligible for repayment under certain circumstances.

By working closely with you, I can protect your rights to debt reimbursement from community property, or expose the weaknesses in the other party's reimbursement claim. For more information, contact my San Jose family law office.

As a Santa Clara County divorce attorney with more than 30 years of experience in resolving issues involving marital debt and debt reimbursement, I can ensure that:

• Your property rights are protected
• Your payments on marital debt are properly credited, and
• You're not left with more than your share of credit card bills or unsecured debt after your divorce

If you have questions about marital debt and debt reimbursement in your specific situation, contact my San Jose law office.