The loving bond of marriage has an interesting additional upside — in terms of defending against an action to collect against your assets: assets held jointly as marital property are not something a creditor can go after, unless the credit has a judgment against both husband and wife.
This is because, when a creditor sues someone and gets a judgment, the creditor can go after the defendant’s individual assets, only. The court has no jurisdiction over the property of another, absent due process to that other party.
Marital property held by husband and wife is governed by something called “tenancy by the entireties,” meaning, it is owned by the marriage, so unless the creditor has a judgment against both husband and wife, their marital property is beyond the reach of creditors of either spouse, unless the judgment is against both husband and wife.
Marital Property – Defined
Any property acquired during the marriage (pre-separation) is “marital” unless excluded from the marriage by premarital or post nuptial agreement of the marries parties or if it is inheritance. For this reason, if the debtor is married, the creditor must be sure to get a judgment against both husband and wife, even if the assets sought during collection are titled in the husband’s name only. The key question is, what the asset acquired during the marriage? If so, it is likely “marital” and beyond the reach of creditors. In practice, all the married debtor needs to do is have the spouse sign and affidavit that the assets are “marital” and that will put a prompt end to collection via the sheriff if the judgment is against one, but not both spouses.
