Claim against house in future?

[kristyf]

Hello

In AZ (comm prop state). i understand that all debts are community debts and can be discharged even if only one person files. the only thing the creditors can do after discharge is try to lay claim on non-filing spouse's SEPARATE property. well, our newly-bought house is my husband's separate property because of the disclaimer deed I signed when we bought it.

questions: anyone know the likelihood of creditors later filing claim against the house? does it even matter if there's no equity? is there a time frame in which creditors have to do this?


thanks to anyone who can help!

kristy

[kristyf]

well i think i found the answer.

even though the disclaimer deed i signed when my husband bought our house says that it is his sole and separate property, it really isn't. it's community property, which means it will be protected as part of the BK estate.

see http://www.irs.gov/irm/part25/ch13s01.html


25.18.1.2.22 (02-15-2005)
Mixing or Commingling Community Property With Separate Property.

1.

Mixing or commingling separate property with community property will transmute the separate property into community property unless the separate property component can be traced. If community property is used to assist in the purchase of a separate property asset, or if community property substantially benefits or improves separate property, a community property right to reimbursement is presumed. The right is "pro tanto," meaning that it follows appreciation, interest, and profits attributable to the community property contribution. It is generally not applicable for routine upkeep and living expenses, such as payment of property taxes or maintenance. It often arises, for example, where one spouse owns a house prior to marriage, and after marriage, uses wages (a community property asset) to continue paying a mortgage.



but more importantly this section

Exhibit*25.18.1-1* (02-15-2005)
Comparison of State Law Differences in Community Property States
*
8. Does a deed taken in the name of one spouse as sole and separate property create separate property?

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.


yeah!! it means i can file solo, get rid of all our comm debts, and protect all our comm property, assuming it qualifies as an exemption.

i think i'll be able to sleep tonight, as opposed to last night.



any comments?

[NewDawn]

That sounds great. The only thing I'm not sure about is whether you can double the exemptions or not if you're filing solo. Will the single exemptions be enough to cover all your property?