DEBTS

My spouse ran up huge credit card debts during the marriage. In dividing
assets and debts in the settlement agreement who should be responsible for
these debts?

In California, Family Code section 910 provides that the community is liable for all debts
incurred during the marriage and prior to separation. It doesn’t matter whether the debt was
incurred by one spouse for there own benefit or for the family. It also doesn't matter whose
name appears on the bill or the credit card statements. If it was incurred during the marriage
and prior to separation it's a community property debt and both spouses are equally liable. This
means that when the parties are negotiating a settlement and tallying the marital balance sheet
such debts should be divided equally. A better option might be that one spouse agrees to pay
off the joint debts in return for a greater share of the community property. The spouse paying
off the debts can at least make sure that joint debts are paid because as long as debts are
jointly owed both spouses are financially responsible to the creditors.

What if a married couple pays off one parties pre-marriage debts?

Consider this example. Bob and Jackie get married. Bob has huge credit card debts that he
incurred before the marriage. Bob and Jackie want to improve their credit rating so they can
buy a house. They agree to pay off Bob's debts. However, once they are debt free, Bob files for
dissolution. In this case, Bob and Jackie have used community property earnings to pay off
Bob's separate property debt. California case law states that the community is entitled to a
reimbursement for the amount it paid to discharge one parties separate property debts. 1 So in
the above example, the community is entitled to a reimbursement for paying Bob's debts.

What if one party uses their separate property to pay off community property
debts?

In this example after they get married Bob and Jackie go on vacation and rack up huge debts.
Jackie dips into her brokerage account which she built up prior to the marriage to pay off the
vacation debts. In this case, Jackie has used her separate property to pay off community debts.
California case law states that a spouse who, during marriage and before separation, uses
separate property to satisfy a community debt is presumed to make a gift to the community. 2   
So in the above example, Jackie is not entitled to a reimbursement for paying the community
vacation debts.

There is one important exception to his rule. Family Code section 2640 provides that where one
party uses their separate property for the acquisition of community property, the paying spouse
has a statutory tracing right of reimbursement if they have not waived the right in writing.
Contributions to the acquisition of property include downpayments, payments for improvements,
and payments that reduce the principal of a loan used to finance the purchase or improvement
of property. They do not include payments of interest on a loan to purchase property, or
payments for maintenance, insurance, or taxation of the property. So in the above example, if
Jackie had used her separate property brokerage account to pay off the principal on a joint
mortgage or for a downpayment she would be entitled to a reimbursement of that amount.

After separation one spouse uses their separate property earnings or property
to pay off community debts.

In this example after Bob and Jackie separate, Jackie continues to drive the BMW which was
purchased with a loan during the marriage. Bob continues making the loan payments on the
car. Can Bob claim a reimbursement credit for all the payments he makes from the date of
separation to the date of trial?

California case law has developed the general rule that a spouse who, after separation, uses
earnings or other separate property to pay pre-existing community obligations should be
reimbursed out of community property upon dissolution. 3  These are traditionally called
"Epstein credits" after the California Supreme Court case that established the rule.

Under this general Bob could, in theory, claim credits for all the payments he makes on the car
loan after separation. But what if Bob was driving the car and making the payments. Wouldn’t it
be unfair for Bob to have the use of the car and also claim reimbursement credits? That's what
the Court said in Epstein.  It laid out an exception to the general rule where the paying spouse
also uses the asset and the "amount paid was not substantially in excess of the value of the
use."  So this means that Bob could not claim credits for the monthly payments if he drives the
car but probably could claim a credit if he paid of the entire loan.

There are two other important exceptions to the Epstein general rule that a spouse who uses
separate earnings or property to pay off pre-existing community obligations is entitled to a
reimbursement: (a) where there is an agreement between the parties that the payments will not
be reimbursed, and (b) where the payments were intended as a gift or as child or spousal
support.

After separation one spouse uses community property funds to pay of their
living expenses. What are the consequences?

In this example, Bob and Jackie separate and Bob agrees to pay $1000 per month in support
and "whatever else you need out savings." Jackie takes out $1,000 community property from
the joint bank account to pay various living expenses. California case law provides that the
community is entitled to reimbursement where one spouse uses community property to pay
separate obligations after separation to the extent that exceed a reasonable amount for child
and spousal support. 4  A reasonable amount would probably be the amount of guideline
support that a Court would order in an application for temporary child and spousal support. If
that amount were $1,500, in the above example, Jackie would have to reimburse the community
$500 ($2,000 - $1,500 she received). In the division of community property she would receive
$250 less in community property. Since this rule flows from Epstein, the parties can waive the
rule in writing and agree that such payments shall not reduce the community estate.

After separation one spouse stays in the family home while the other spouse
pays the mortgage. What are the consequences?

It's often the case that after separation one spouse moves out of the family home ("the out-
spouse") while the other spouse stays in the home with the children ("the in-spouse"). The out-
spouse, usually the husband, may offer to maintain the status quo by continuing to pay the
mortgage payments and other payments such as property taxes to maintain the property. In
such a situation the in-spouse should be warned that there may be serious consequences of
such an arrangement at the time of trial.

We've already seen one consequence. The out-spouse paying the mortgage payments may be
entitled to Epstein credits because they are paying separate property earnings towards a
community property debt unless there was an agreement to waive such reimbursements or
such payments were a form of child or spousal support.

The other major consequence is that if the reasonable rental value of the family home is more
than the mortgage payments, the in-spouse may be required to reimburse the community for
the difference in these payments between the date of separation and the date of trial. These
are called Watt's charges after the case that established the rule. 5. The general rule is that
where one spouse has the exclusive use of community assets during the date of separation
and trial, that spouse may be required to compensate the community for the reasonable value
of that use.  Consider this example. Bob and Jackie separate. Jackie and the kids stay in the
family home after separation. Bob agrees that he'll continue to support the family and pay the
mortgage and other expenses. The mortgage payments are $1,500 per month. If Jackie had to
pay the fair market rent for the property she'd pay $2,500 per month. Bob pays the mortgage
for 10 months from the date of separation to the date of trial. Bob could argue that he should
be reimbursed Watt's charges of $10,000 ($2,500 - $1,500 x 10). In a division of community
property he'd be entitled to an extra $5,000. Bob could argue that he should also be entitled to
Epstein credits of a further $15, 000 ($1,500 x 10) which would increase his share of community
property by $7,500.

This would mean that Jackie's entitlement to community property would be reduced by $25,000
when she thought that Bob was supporting her and maintaining the status quo? Isn’t this
grossly unfair? 7. You'd think so but that didn’t stop the Court of Appeal awarding Epstein
credits and Watts charges in similar circumstances in In re Marriage of Jeffries (1991) 228 Cal.
App. 3d 548. But wait a minute. Isn’t there an exception to the rule where payments are made
"in lieu of spousal support?" The answer is yes "but" this has to be clearly spelled out before
the Court will treat such payments as support. In Jeffries, there was even an Order of the Court
that said the payments were "in lieu of spousal support."  However, the Order also said that the
Court retained jurisdiction to characterize these payments and determine whether the Husband
should be entitled to reimbursements.

In another case the Court of Appeal reached exactly the opposite conclusion to Jeffries. 6.  In
this case the husband also paid the mortgage pursuant to a temporary court Order "in lieu of
spousal support" and at trial claimed Epstein credits and Watts charges. The Court of Appeal
held that public policy and the language of the Court order required that the Court deny the
husband's claims for Epstein credits. The Court then decided that since the wife was, in effect,
paying the mortgage she would not have to pay any Watt's charges because the monthly
mortgage payments were the same as the fair market rental value of the home.

The only solution to this mess is for the parties and their attorneys to agree early on in the
proceedings whether a spouses payment of community debts (such as the mortgage) and one
spouse living in the family residence should be treated as spousal support which does not
generate Epstein credits or Watt's charges. If it's treated as spousal support any agreement or
Order should contain explicit language that mortgage and other payments by the out-spouse
and exclusive residence by the in-spouse in the family home "shall be treated" as spousal and
child support and the paying spouse shall not receive any reimbursements such as Watt's,
Epstein, Jeffries credits and charges.

Who is responsible for credit card debts?

Family Code 2623 (a) provides that debts incurred after separation but before the judgment of
dissolution are confirmed to the spouse who incurred the debts if they are for "non-necessaries
of life" of the spouse or the minor children. If they are incurred for the "necessaries of life" of
the spouse or the minor children, then they will confirmed to either spouse according to each
parties needs and abilities to pay when the debts was incurred, unless there's a written
agreement or order for support.

Generally, debts incurred during the marriage shall be divided between the parties. However,
Family Code 2625 gives the court the power to assign a debt incurred during the marriage to
one spouse if it "was not incurred for the benefit of he community." 8  Further, Family Code
2602 provides that the court may also award an offset against a party's community share if it
finds that amounts were deliberately misappropriated by a wrongdoing spouse.


Footnotes:

1. Marriage of Walter (1976) 57 Cal. App. 3d 997.
2. See v. See (1966) 64 Cal. App. 2d 778. In Re Marriage of Nicholson (2002) 104 Cal. App. 4
289, the Court of Appeal held where Husband had used $30,000 that his mother had given him
as a gift (i.e. separate property ) to pay off the credit card ( community property debts) so they
could qualify for a loan to buy a house, he was not entitled to a reimbursement.
3. In re Marriage of Epstein (1979) 24 Cal. 3d 76. Also In Re Marriage of Tucker (1983) 141
Cal. App. 3d 128.
4. Epstein, above; In re Marriage Stalworth (1987) 192 Cal. App. 3d 742.
5. In re Marriage of Watts (1985) 171 Cal. App. 3d 366.
6. In Re Marriage of Garcia (1990) 224 Cal. App. 3d 885.
7. This is the conclusion of one Family Law Commissioner: "It is fundamentally unfair for one
spouse to move out and to allow a post-separation living arrangement to stabilize on one set of
financial assumptions and then, without warning to the other spouse, introduce for the first time
at trial a concept as pernicious as a Watts credit claim to set up an entirely different set of
financial assumptions." Commissioner Richard Curtis (2003)
8. Marriage of Cairo (1988) 204 Cal. App. 3d 1255. Gambling debts incurred on credit cards
during marriage assigned to Husband.



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