In California, creditors can usually look to a non-debtor spouse’s assets to collect on a judgment. This often includes the wages of the non-debtor spouse. Since wages are generally considered community property, the non-debtor spouse’s earnings are typically subject to garnishment.
The Process: Unlike garnishing the debtor’s wages, a court order is required before garnishing the spouse’s wages (see CCP § 706.109). The creditor must file a motion and properly serve it on the judgment debtor and the non-debtor spouse. The motion should explain why the spouse’s wages are community property. If the court grants the motion, the creditor must deliver the court’s order to the sheriff along with the writ of execution.
However, a non-debtor spouse’s wages are not always subject to garnishment. Pursuant to Family Code § 911, if the debt existed before the marriage, the spouse’s wages cannot be garnished so long as the spouse’s wages are deposited into a bank account in only the spouse’s name, and the funds are not commingled with community property assets. In many marriages, both spouses have access to all bank accounts. If this is the case, both spouse’s wages are subject to garnishment, even if the debt was incurred before marriage.
In evaluating collection options, creditors should consider the assets and employment of both spouses.
