In Re Marriage of Feldner

Introduction

Community property is liable for debts incurred by either spouse during marriage. (Fam. Code, § 910, formerly Civ. Code, § 5120.110, subd. (a).) But exactly when is a debt “incurred”? The Family Code provides that “[i]n the case of a contract,” it is “at the time the contract is made.” (Fam. Code, § 903, formerly Civ. Code, § 5120.040.)

So what does it mean to “make” a contract when performance extends over a period of time which spans a marital breakup? In the present case a contractor completed a building during the marriage, but the structure was allegedly defective and required work after the contractor separated from his wife. The building contractor failed to do that work and was sued, in part, for his failure. In the building contractor’s divorce case, the family court declared the entire liability represented by the suit was community in character. The wife, now stuck with half the potential liability from the suit, claims the family court erred. Did it?

No. The character of the debt is clearly community because the contract giving rise to the debt was, indeed, “made” during the marriage. All the consideration given (the promise to build and, if…