Loan before divorce - can I sue in court?

What is the name of your state (only U.S. law)? CA

My wife and I have been married for less than 6 months. She unfortunately had financial problems before our marriage and I loaned her a total of $10k. Unfortunately it does not look like things will work out, should we decide to divorce can i place a lawsuit against her in small claims court? (I know small claims max is $7,500 in CA)


Though I dont have a formal document (ie prommisory note, etc) I do have documentation (emails) stating that she acknowledges it was a loan and had every intention on paying me back once she got back on her feet. Would this hold in court? Or does the marriage automatically ERAS everything?

Since we have no assets, kids, etc it is very unlikely that we will go to Divorce court - it will most likely be relatively simple (hopefully).

spcoex said:

What is the name of your state (only U.S. law)? CA

My wife and I have been married for less than 6 months. She unfortunately had financial problems before our marriage and I loaned her a total of $10k. Unfortunately it does not look like things will work out, should we decide to divorce can i place a lawsuit against her in small claims court? (I know small claims max is $7,500 in CA)


Though I dont have a formal document (ie prommisory note, etc) I do have documentation (emails) stating that she acknowledges it was a loan and had every intention on paying me back once she got back on her feet. Would this hold in court? Or does the marriage automatically ERAS everything?

Since we have no assets, kids, etc it is very unlikely that we will go to Divorce court - it will most likely be relatively simple (hopefully).

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Divorce her butt NOW!! Consider the $10k GONE!!

Bali Hai said:

Divorce her butt NOW!! Consider the $10k GONE!!

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I agree with Bali, you can kiss that money good bye

spcoex said:

What is the name of your state (only U.S. law)? CA

My wife and I have been married for less than 6 months. She unfortunately had financial problems before our marriage and I loaned her a total of $10k. Unfortunately it does not look like things will work out, should we decide to divorce can i place a lawsuit against her in small claims court? (I know small claims max is $7,500 in CA)


Though I dont have a formal document (ie prommisory note, etc) I do have documentation (emails) stating that she acknowledges it was a loan and had every intention on paying me back once she got back on her feet. Would this hold in court? Or does the marriage automatically ERAS everything?

Since we have no assets, kids, etc it is very unlikely that we will go to Divorce court - it will most likely be relatively simple (hopefully).

Click to expand...

ASSUMING THAT THE LOAN WAS MADE BEFORE YOUR MARRIAGE: If you can document that she promised to pay, it MAY be enforceable as a pre-marital debt (the pre-marital part is important). Equally importantly, you MAY be able to deduct it on your taxes as a bad debt if you are unable to collect it (although this gets into a gray area).

I'm not sure that small claims is going to work though. As soon as you show your documentation that she owes you money, it will be clear that the amount exceeds your small claims limit (you can't say "she owes me $10 K, but I'll take $7,499, so it's below the limit for small claims").

If there were any assets, you could ask the court to consider it in the property division so that you receive a greater share of the property to make up for that pre-marital debt, although that doesn't help if there are no assets.

If the loan was made after the marriage (your post wasn't entirely clear on the timing), it's unlikely that you have any way to recover it.

I'd suggest consulting with an attorney.

mistoffolees said:

ASSUMING THAT THE LOAN WAS MADE BEFORE YOUR MARRIAGE: If you can document that she promised to pay, it MAY be enforceable as a pre-marital debt (the pre-marital part is important). Equally importantly, you MAY be able to deduct it on your taxes as a bad debt if you are unable to collect it (although this gets into a gray area).

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In order to deduct a bad debt on Schedule A, one must have gone through the full steps to attempt to collect the debt (including getting a judgement against the debtor) to document that the debt is truly uncollectable. Either that, or the debtor would have had to file bankruptcy against the debt, or some other action would have to take place to document that the debt is uncollectable.

It is also necessary to issue a 1099-C to the debtor as well.

Thanks everyone for the info!

The loan was made BEFORE the marriage and can provide full documentation (email, scanned checks) proof. So at least I have a case.

As far as collecting - She does own three pieces of property which she bought on her own and BEFORE the marriage. Perhaps I can place a lien on them, assuming I win in small claims court.

Also, this brings up an interesting question - can I sue my "soon to be ex-wife" in court (I say "soon to be" because I understand that divorce may take months to complete) or does she have to be officially my ex-wife before I can take her to small claims court?

spcoex said:

Thanks everyone for the info!

The loan was made BEFORE the marriage and can provide full documentation (email, scanned checks) proof. So at least I have a case.

As far as collecting - She does own three pieces of property which she bought on her own and BEFORE the marriage. Perhaps I can place a lien on them, assuming I win in small claims court.

Also, this brings up an interesting question - can I sue my "soon to be ex-wife" in court (I say "soon to be" because I understand that divorce may take months to complete) or does she have to be officially my ex-wife before I can take her to small claims court?

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You cannot go to small claims court. You were already told that.

I am not at all sure that this is going to work for you even in regular court.

spcoex said:

Thanks everyone for the info!

The loan was made BEFORE the marriage and can provide full documentation (email, scanned checks) proof. So at least I have a case.

As far as collecting - She does own three pieces of property which she bought on her own and BEFORE the marriage. Perhaps I can place a lien on them, assuming I win in small claims court.

Also, this brings up an interesting question - can I sue my "soon to be ex-wife" in court (I say "soon to be" because I understand that divorce may take months to complete) or does she have to be officially my ex-wife before I can take her to small claims court?

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You really need to see an attorney in your state. The question you just asked is only one of the issues (although you've already been told you can't use small claims court).

You also need to be concerned about the validity of the 'contract', statue of limitations, and other factors.