<div dir="ltr"><div class="gmail_default" style="font-size:large">Josh--some simple thoughts:</div><div class="gmail_default" style="font-size:large"><br></div><div class="gmail_default" style="font-size:large">1. Aren't you talking about a post-nuptial agreement rather than an ante-nuptial?</div><div class="gmail_default" style="font-size:large"><br></div><div class="gmail_default" style="font-size:large">2. You don't say how the corporate income comes out of the company to be used by the H and W for personal expenses. Does it come out of the corporation via salary to H or via dividends to the shareholder? This is critical as salary is community property and dividends are likely separate property of H.And, an adequate salary is important in keeping the stock H's separate property. </div><div class="gmail_default" style="font-size:large"><br></div><div class="gmail_default" style="font-size:large">3. Did H personally guarantee the corporate debts? I saw nothing in your email which suggests a valid path for a creditor to pierce the veil and impose the debt directly on H and W, unless when you say company income is being used for personal expenses you mean the corporate check book is being used to buy groceries. That would be bad.</div><div class="gmail_default" style="font-size:large"><br></div><div class="gmail_default" style="font-size:large">4. I agree that nothing you mention suggests W's separate property could be used to satisfy a debt which is community unless she also signed the obligation.</div><div class="gmail_default" style="font-size:large"><br></div><div class="gmail_default" style="font-size:large">Mark</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Wed, Sep 2, 2015 at 2:00 PM, Josh Grant <span dir="ltr"><<a href="mailto:jgrant@accima.com" target="_blank">jgrant@accima.com</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
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<div>This is an estate planning type question.</div>
<div>W is a client whose husband’s business corporation appears to be raking up
a lot of business debt. This is a second marriage and they have tried to keep
their finances separate, in fact the income from the business has been used for
community benefit (food, electricity, vacations etc.). W has a separate
asset she wants to protect (farm land given by dad). H&W never did a
pre-nuptial agreement. Been married 10 years+.</div>
<div> </div>
<div>H&W thought a ante-nuptial agreement might help protect W’s
separate asset. H had it drawn up and W was referred to me as her
independent attorney. This is a standard type of agreement where on
schedule “A” the business corp is listed as H’s, and W’s is listed as her
separate asset.</div>
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<div>My thought is that basically, as long as they are married, or as long as
they do not have a separation decree, that whatever they sign between them
won’t help against creditors. (just like the client who has to pay a
community debt even after that debt was listed as the responsibility of the
former spouse in a dissolution decree). If I were a creditor’s attorney I
would ask the court to pierce the corporate veil and determine that the corp is
a community asset and the debt is a community debt and go after all community
property, again without regard to this agreement.</div>
<div> </div>
<div>I think if ever sued, judgment would be entered against H&W and their
marital community, and the separate farmland wouldn’t be affected anyway.
If a creditor tried to get a judgment against W’s separate property, then she
could hire an attorney and get the court to enter a judgment only against the
community and community property, with or without an agreement.</div>
<div> </div>
<div>Anyone think a ante-nuptial agreement would be a substantial protection for
W against business debts, even if H is a sole shareholder?</div>
<div> </div>
<div>Josh Grant</div>
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<div style="color:rgb(0,0,0);font-family:"Calibri";font-size:12pt">Joshua F.
Grant, PS<br>Attorney at Law<br>P. O. Box 619<br>Wilbur, WA 99185<br>tel 509 647
5578<br>fax <a href="tel:509%20647%202734" target="_blank" value="+15096472734">509 647 2734</a><br></div>
<div> </div>
<div> </div></div></div></div>
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