Legal Question in Real Estate Law in California

My husband is being sued by creditors. I have a home under my name only NOT my husband. He is not on the title or loan. I am affraid that the creditors will put a lien on my home. I have never changed my last name to his but we are legally married. Can the creditors still come after my home? Should I file a Homestead? How long will Homestead protect my home?

Asked on 6/28/13, 8:43 am

2 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

It would help to know the nature of the debt that your husband is being sued upon. If it is a community obligation, your separate property can be looked to satisfy any claims.

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Answered on 6/28/13, 1:02 pm

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Mr. Roach is correct as far as he goes. However, it is also useful to understand the nature of homesteads and the limited protection they offer. There are two kinds of homestead in California, an "automatic" homestead under the general laws covering satisfaction of claims and judgments, and a so-called "declared" homestead offering largely overlapping protection, but requiring the recordation of a simple declaration. Both have residency requirements, so neither is likely to be useful if you don't live in the homesteaded property. Also, the protection offered by a declared homestead against pre-existing liabilities is limited to nil. Declaring homestead by recording a declaration may be a red flag to creditors. Finally, although you didn't ask, but some people do, transferring threatened property to friends, relatives, try to hide it from creditors may trigger the Uniform Fraudulent Transfers Act, Civil Code sections 3439 to 3439.12.

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Answered on 6/29/13, 6:54 pm

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