CONSUMER e-ALERT©
(June 2010)
“Knowledge is Power-The more knowledge you have, the more powerful you are.”
WHEN DISSOLVING YOUR MARRIAGE BE SURE THE DEBTS ARE ASSIGNED TO YOUR EX-SPOUSE OR YOU MAY WIND UP PAYING FOR YOUR EX-SPOUSE’S BILLS AFTER SEPARATION
FACTS
The parties to the marriage separated. After separation, the husband, Daniel, was admitted to Tri-City Hospital for treatment. By the time of his release four days later substantial medical bills had been incurred. Thereafter his wife Pamela, filed for dissolution of the marriage. Pamela disclosed the hospital debt and stated in the pleadings that the hospital debts belonged to Daniel. A judgment of dissolution of the marriage was subsequently entered. The judgment did not assign any of Daniel’s hospital and medical bills to Pamela.
Late CMRE Financial Services, as assignee of the hospital bills filed a complaint against Daniel and Pamela alleging the parties owed $26,083, plus interest. Pamela filed an answer denying the allegations and cross-complained for violation of the Fair Debt Collection Practices Act. CMRE could not serve Daniel and dismissed him without prejudice (meaning Daniel could be sued again later.) CMRE demurred to Pamela’s cross-complaint (meaning regardless of what she said, CMRE had no liability.) CMRE stated Pamela was liable for the medical bills and she was not relieved of the liability because of the dissolution judgment. The trial court agreed, dismissed Pamela’s cross-complaint and gave judgment to CMRE for $26,083 plus interest, attorney fees and costs. Pamela appealed.
The Court of Appeal said . . .
Reversed. Family Code Section 914(a)(2) provides a married person is responsible for the debts covering common necessaries of life by the person’s spouse while they are living separate and apart unless there is a written separation agreement between the spouses, then the terms of the agreement will control. There was no separation agreement here. However Family Code Section 916(a)(2) states she is not liable if the debt is not assigned to her for payment pursuant to the judgment. It was not so assigned. The section provides “notwithstanding any other provision of this chapter, the separate property owned by a married person at the time of the division and the property received by the person in the division is not liable for a debt incurred by the person’s spouse before or during marriage and the person is not personally liable for the debt, unless the debt was assigned for payment by the person in the division of the property. The judgment did not assign the debt to Pamela for payment and thus she was not liable. Although Section 914 gave Pamela liability for Daniel’s necessaries that liability was subject to Section 916 where following dissolution of a marriage the nondebtor spouse is only liable for the debts incurred by the former souse during the marriage if the debt is assigned to the nondebtor spouse by the judgment of dissolution. No assignment equals no liability
The nondebtor spouse is only liable for the debt if the debt is assigned to the nondebtor spouse pursuant to the terms of the judgment.
MORAL
If you are dissolving the marriage make sure all debts your spouse incurs after separation are assigned to them and definitely not assigned to you.
DO NOT INTERFERE WITH THE CUSTODY/VISITATION ORDERS OF THE CHILDREN OR YOU COULD BE FOUND IN CONTEMPT OF COURT
FACTS
The trial court issued an order restrains a party from interfering with a custody order. The restraining order is not overbroad. Like a stop sign, it requires no explanation. It simply tells a party to stop interfering with the custody order.
Victoria Hartmann (Wife) appeals the denial of her motion to vacate an order restraining her from interfering with Peter Hartmann's (Husband) child custody time. We conclude the restraining order is neither ambiguous nor overbroad. It simply makes explicit what is implicit in every child custody order: a party may not interfere with the order. We affirm.
The parties were married in January 1990. They have three daughters: one, age 17 years old, and twins, ages 14 years old. The parties separated in July 2002. Wife filed for dissolution of the marriage six months later. The trial on the dissolution was held in August 2007. The parties reached a stipulation concerning their property, leaving child custody and support to be decided.
Wife wanted to send the oldest daughter to an out-of-state boarding school. The daughter previously attended the school and wanted to return. Husband opposed the plan because he wanted to be in his daughter's life daily. In addition, Husband believed his daughter had developed behavioral problems during her previous attendance at the school and needed more supervision. He therefore requested that she attend a local public high school.
By order of August 15, 2007, the trial court determined that the parties have equal physical custody of the children on alternating weeks. The court also ordered that the oldest daughter attend a local public high school.
On September 7, 2007, Wife filed an ex parte application for an order permitting the oldest daughter to attend a local private school. The court denied the motion.
On September 24, 2007, Husband applied for an order restraining Wife from, among other matters, "interfering with [Husband's] custodial time." In part, Husband complained that Wife told the children every detail of the trial. The children reported to him that he won because he lied on the stand; that the parties do not have to follow the court's custody or school placement orders; and that he obtained joint custody only to reduce his child support obligation.
After a hearing, on October 24, 2007, at which the parties presented oral and documentary evidence, the trial court granted Husband's request for the restraining order. In granting the order, the court stated: "[Wife] has approached the decision of this Court as though it was only a 'work in progress.' It is not. [Husband's] contention that [Wife] has attempted to alienate the children by her actions, words and demeanor appears to this Court to be accurate." Unfortunately, the matter did not end there.
In April 2008, Husband filed an order to show cause for contempt. Husband claimed Wife continued to interfere with his custody, including refusal to tell him where his oldest daughter was, and still spoke to the children about attending boarding schools. The matter was continued to allow the parties to participate in family therapy.
On August 25, 2008, Wife filed a motion to discharge the contempt citation on the ground the restraining order was void because it was uncertain and ambiguous. In September 2008, Husband took his order to show cause for contempt off calendar.
In March 2009, Wife filed another motion to vacate the October 24, 2007, restraining order on the same grounds. The trial court rejected her argument, and again ordered that "[Wife] is restrained . . . from interfering with [Husband's] custodial time."
Wife contends the restraining order is vague and ambiguous. But "interfere" is an ordinary English word. It is used in statutes defining contempt of court. Wife fails to cite a single instance in which "interfere" has been held to be ambiguous.
he order here does not prohibit Wife from speaking to everyone but her attorney about everything relating to Husband. It only prohibits speech that interferes with the custody order. In family law cases, COURTS HAVE THE POWER TO RESTRICT SPEECH TO PROMOTE THE WELFARE OF THE CHILDREN. Thus courts routinely order the parties not to make disparaging comments about the other parent to their children or in their children's presence. (See In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 725.) If a court is unable to order the parties not to interfere with a custody order, such orders will become meaningless.
Let there be no doubt, Wife must stop interfering with the custody order. The judgment (order) is affirmed. Costs on appeal are awarded to Husband. (In re Victoria and Peter Hartmann, 2nd App.Dist. 6-23-10)
MORAL
Interfering with custodial and visitation time affects the children mentally and hurts them in their upbringing. They lose contact with the other parent and thereby generally lose self-esteem. You may dislike your ex=partner but children should not be used as a “football” in that dislike.
THE INFORMATION CONTAINED HEREIN IS NOT LEGAL ADVICE.
AN ATTORNEY SHOULD BE CONSULTED IF YOU DESIRE LEGAL ADVICE.
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TOO MANY CREDITORS BOTHERING YOU?
BANKRUPTCY ISSUES
REMEMBER IF YOU ARE SUED OR THE DEBT IS TOO HIGH WITH CREDITORS BANKRUPTCY CAN BE AN OPTION and IS A LOT LESS EXPENSIVE THAN DEFENDING A LAWSUIT:
Bankruptcy can potentially avoid a fraud judgment against the defendant thus reducing the risk of losing a professional license.
If a foreclosure has occurred the lenders on the junior mortgages have the right to sue when it is a non purchase money mortgage. The lenders can sue on the junior mortgages as unsecured promissory notes and they are doing just that. The bankruptcy can remove this lawsuit.
Bankruptcy is a form of asset protection believe it or not. It can in certain circumstances protect up to $175,000 in California and more.
A Chapter 13 bankruptcy may be able to remove that second and even third mortgage by stripping it down as an unsecured lien and paying a percentage of the amount potentially allowing you to save the home.
Past due Income Taxes under certain circumstances can be discharged in bankruptcy.
Under certain circumstances you may be able to legally keep one or more of your credit cards after the bankruptcy so you have something to use when traveling.
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THE INFORMATION CONTAINED HEREIN IS NOT LEGAL ADVICE.
AN ATTORNEY SHOULD BE CONSULTED IF YOU DESIRE LEGAL ADVICE.
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