Legal Question in Family Law in Texas

Re: Responsibility for Debt incurred during separation

I agree with what Fran has stated - that is the law in Texas with respect to community property and debt, and she is also right in that there is no legal separation in Texas. However, there is another perspective here which you might also like to consider - and that is the perspective of these creditors from whom your husband has borrowed all this money. If you personally are not legally bound by the contracts for indebtedness which he has signed with these creditors, then these creditors cannot force you to pay back what he owes them. For example, if he goes to Bank A, borrows the money, signs the note solely in his name, that bank could not sue you for the balance due on the loan if he defaults. Typically what happens in such cases is the creditor sues the debtor, gets a judgement against the debtor and then garnishes the debtor's bank accounts. However, if the account contains community property funds in it, the bank may only withdraw HIS share of those funds - it cannot garnish your share because you are not liable on the loan if you did not sign the note.

However, if he has gotten loans from any creditor to whom you are liable as well - for example, if he got cash advances on your joint accounts, then you would be liable for those. Another issue you need to consider is whether he has signed a note against any of your community property in order to secure the loans. For example, if he put up your car, home, etc. as collateral for these loans. If he has done this, then this will be a big problem for you because there is no way a divorce court can modify the rights of these creditors since they are 3rd parties and are not a party to your divorce suit.

However, for all practical intents and purposes, if the divorce court orders you to pay a certain debt, regardless of whether your name is on the note or not, you must pay it.

Fran is right in that you need to file suit and get all of these issues dealt with at a show cause hearing in which the court will determine what the "rules of the game" will be until your divorce is final. Right now, with no temporary orders in place, your rights remain unprotected.

I wish you the best of luck in the new year.

Sincerely,

Stephanie T. Shipp

Attorney at Law

Re: Responsibility for Debt incurred during separation

Texas does not have legal separation.

You are either married or divorced. Basically, Community debts and assets continue until the date of divorce. If you win the lottery Saturday night, he is entitled to 1/2. If he incurs debts, you are obligated for 1/2.

If you are concerned about his incurring debt, then you need to file for divorce and ask for a temporary order hearing. At that hearing, both of you can be (if the Judge orders) ordered to not incur any extra debt other than normal expenses of living (rent, utilities, car note payments, food, clothing, etc.)

Happy New Year.

If you live in the Houston area, please feel free to give me a call at 713-847-6000.

Fran Brochstein

www.familylaw4u.com