Legal Advice on Debts and Bankruptcy
Questioner
We have been living in France for several years (married in the Netherlands with a prenuptial agreement!!). Now it so happens that my husband is involved in a lawsuit (he still receives money from others) but in the meantime our debts are starting to mount up. We are also having a hard time paying the taxes etc. My husband has his own (1 man) company. The lawsuit will not be heard here in France until spring 2017. My direct question is, if he goes bankrupt in terms of company, can the tax authorities also come to me personally to recover? In other words, the money that I have now and have saved, could it be that I will have to hand that in later? The other party has said that they will do everything they can to also hit my husband privately, if necessary. I live in great anxiety and with much sorrow and worry.Lawyer
Your question is not easy to answer. The main point is that if you are married outside of any community of property (note: the fact that you are married under a prenuptial agreement does not automatically mean that you are married outside of any community of property), you are not liable for your husband's debts and that no recovery for these can be made from your assets. It should be noted that it is up to you to keep your assets clearly separated from your husband's assets and that in some cases it is not always clear whether a debt is only your husband's. Sometimes it turns out that one spouse has 'co-signed' for debts of the other spouse. Furthermore, it may be that your husband has claims against you, for example because he has paid for goods that are in your name. In such cases, creditors or the trustee in your husband's bankruptcy could seize these claims of your husband against you. In your case, the issue may also be more complicated because French law may apply, for example because the debts in question were incurred in France and the performance from which the debt arose was performed in France. Finally, you write that your husband is a sole proprietor. This means that if he goes bankrupt 'in business', he (under Dutch law) will also go bankrupt 'in private' and that your husband's share in things that you jointly own (for example a house that is in both your names) will have to be converted into cash to pay the debtors. This means that these kinds of things will have to be sold and you are only entitled to payment of your share in the proceeds of the sale of the business. My advice is to discuss with a financial-legal expert, who also understands the (possible) French component of this case, how your assets can be protected as much as possible if the legal case in which your spouse is involved does not end well.Questioner
Could this question also be put to one of your colleagues who could tell me financially and legally how I could best shield my share? I still have a Dutch account....but if my mother dies (she is now 92) I am entitled to my inheritance and this will be around 50,000.00 euros...I can't imagine having to 'hand in' this money from my parents! However, that money is in my name. What I find difficult to understand is that I am not married outside of community of property...I thought that a prenuptial agreement automatically meant that I was already shielded....It is true that I co-signed for our house and 12% is only mine. Later I also brought in various amounts...I think around 45,000 euros but this can only be verified by statements....Thanks in any case for your thoughts!Lawyer
If the prenuptial agreement was drawn up with the aim of protecting your private assets as much as possible against the business risks of your husband's company, then the chance that there is a (limited) community of property is small. Your mother can stipulate in her will that everything her heirs receive will not fall under any community of property/settlement clause. This also gives you protection regarding the recovery of your spouse's debts from your (future) inheritance. The fact that the house is largely in your husband's name is a risk. I understand that you have invested an additional €45,000 in the house. This can be said to result in a claim from you on your husband of 88% x €45,000 = €39,600, which amount your husband (if he has the means) could pay to you into an account in your name.Questioner
Could this question also be put to one of your colleagues who could tell me financially and legally how I could best shield my share? I still have a Dutch account....but if my mother dies (she is now 92) I am entitled to my inheritance and this will be around 50,000.00 euros...I can't imagine having to 'hand in' this money from my parents! However, that money is in my name. What I find difficult to understand is that I am not married outside of community of property...I thought that a prenuptial agreement automatically meant that I was already shielded....It is true that I co-signed for our house and 12% is only mine. Later I also brought in various amounts...I think around 45,000 euros but this can only be verified by statements....Thanks in any case for your thoughts!Neem de volgende stap
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