Friday, March 28, 2008

I do not want to be responsible for my spouse's debts...

Dear Famularo & Associates:
I just married my husband a month ago. We did not have a prenuptial agreement. I had intended to enter into a contract with my husband before marriage which stated that whatever money he borrowed during the marriage was his sole and separate obligation and I would not be responsible for the debt. I still want to enter into some type of agreement, but I do not know if it is too late. I also hope to buy a house in the near future. My husband does not work, so I do not think it is fair for the house to become community property. Is there anything I can do to keep our assets and debts separate in the event we divorce?
--H.L. in Murrieta

Dear H.L.-
According to California community property laws, all assets and debts accumulated during the marriage are divided equally unless the parties agree to a different arrangement. It sounds like you desire to enter into an arrangement with your husband whereby any and all assets and debts acquired in his name remain his sole and separate property, and any assets and debts acquired in your name remain your sole and separate property.

This agreement can be entered into at any time, even after the parties marry. If the agreement is entered before a marriage, it is called a prenuptial agreement. If the arrangement is made after the parties are already married, it is called a post nuptial agreement.

If you and your spouse both agree that all assets and debts acquired in each of your names should be your sole and separate property, then you need to put that agreement in writing. Make sure you clearly spell out the intention that any debts in your husband's name are his sole and separate obligation and any debts in your name are your sole and separate obligation- even if they are incurred during the marriage. Make sure you also specifically state that any assets accumulated in your husband's name only are his sole and separate property, and any assets accumulated in your name only are your sole and separate property. Your best bet is to hire an attorney to draft the agreement if you want to make sure it will be enforced in divorce court.

Famularo & Associates

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