Legal Question in Family Law in California
Can a post nuptial agreement protect my husband and our joint assets from my prior debt? My previous house is going to be a short sale, but the bank will not guarantee that they will not seek a deficiency. How do I protect my husband and our future from this past debt collecting? When we married we did not sign a pre-nuptial agreement and now I wish I would have just declared bankruptcy before we married. My husband has no debt and this financial issue is very stressful for him. It's not fair that he would suffer for my past.
2 Answers from Attorneys
Neither a pre-nup nor a post-nup can really do that. A creditor is entitled to enforce a spouse's separate property debt against the separate property of that spouse and the community property interest of that spouse in the community's property and income. If you can satisfy the debt out of your separate property, you should simply do that. If you can't, transmuting community property into your husband's separate property would be a fraudulent conveyance, just like any other transfer without reciprocal value that renders a person unable to answer for their debts.
You don't avoid future liability with a prenuptial or a post-nuptial agreement. You need to insure the bank waives the difference in the short sale paperwork, otherwise you have shot yourself in the foot.
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