I am in communion of property with my wife, who with the activity she had contracted many debts. I have a checking account made out only to me on which I will pay an amount equal to half of the sale of our house. Any creditors, could even attack my account or the aforementioned account does not belong to the things related to the communion of assets?

 

According to established jurisprudence the executive aggression of each of the assets in legal communion between spouses, for personal debts contracted by one of them, is legitimate.

Therefore, the current account in the name of the non-debtor spouse is liable for debts of the debtor spouse if the matrimonial regime adopted by the couple is that of the communion of assets.

However, the non-debtor spouse has the right to receive, at the time of distribution, half of the proceeds (gross of procedural costs) of the sale of the asset. In the specific case of foreclosure of the current account, the non-debtor spouse is entitled to half the cash and securities account.

Furthermore, the non-debtor spouse could claim the sums that are exclusively attributable to him in the current account, thereby reducing the liquidity in communion subject to expropriation. For example, the proceeds from the sale of a property received as inheritance (a property which, as we know, is not part of the communion between spouses) by the non-debtor spouse.

In practice, if the account of the non-debtor spouse has 100 euros at the time of the attachment, and 40 euros constitute the (traceable) proceeds of the sale of a property inherited from the non-debtor spouse, the creditor of the debtor spouse could obtain the assignment of 30 euros following an opposition to the execution effectively carried out by the non-debtor spouse.

We use the conditional simply because the judge could always consider (the right is also opinion) totally irrelevant the reasons why the money was paid into the current account of the non-debtor spouse, since money is universally recognized as a fungible asset for excellence (in practice, once the proceeds from the sale of the immovable property received as an inheritance are paid into the current account, that money loses its genesis and is confused with the other assets in communion of goods).

In short, the message to be conveyed here is that the current account held by a spouse who is not a debtor in communion with the debtor spouse, must be considered, in a prudential way, 50% seizure (in the sense that it is clear, once a distraught in full the current account on executive action promoted by the creditor proceeding against the debtor spouse, the non-debtor spouse, with the necessary support of a lawyer, will be able to recover, from the execution judge, 50% of the dispossessed with the attachment ). In the face of this presumption of prudence and the difficulties that must inevitably be faced for the protection of the non-debtor spouse, it will be better to take all the necessary precautions.

Also because there is always a risk that the creditor will adopt the procedural strategy aimed at demonstrating that the debts incurred by the debtor spouse to finance his professional activity have been used to meet family needs: which would make the spouse debtor (a legal principle that still applies, even if the matrimonial regime adopted was that of the separation of assets).