California Family Code § 2626: Reimbursement for Debts Paid After Separation

Plain-Language Summary

California Family Code § 2626 ensures that when one spouse pays a community debt after the spouses have separated but before the divorce trial, the court can order reimbursement from the other spouse as part of the property division. In simpler terms, if you use your own money (earned post-separation) to cover what was a shared marital debt, the judge has the authority to credit you for that payment during the divorce settlement. Importantly, this reimbursement (often called an “Epstein credit” in California family law) is not automatic – the court will decide if it’s appropriate based on the circumstances. The goal of §2626 is to enforce fair division of property and debts: one spouse shouldn’t be unfairly stuck paying a joint obligation alone. The law sets the time frame for these credits as after the date of separation and before the case goes to trial (final judgment), which means the issue must typically be raised and resolved during the divorce proceedings. In practice, judges use §2626 to make sure that community debts are split equitably, reimbursing a spouse who paid more than their share, unless there’s a good reason not to (for example, if that payment was essentially a gift or in lieu of support).

Real-World Examples

Spouse reimbursed for paying mortgage: In In re Marriage of DeSanto (Cal. Ct. App. 2012), a husband continued to pay the mortgage, property taxes, and maintenance on a rental house after the couple separated. At trial, the court awarded him reimbursement for half of those post-separation payments under §2626. The wife argued against repaying him – claiming he said he’d “take care of” the property and noting that he refused to sell it when she wanted (which later led to a drop in value). But the judge found no agreement that he waived reimbursement and no intent to make those payments a gift. Because his payments preserved a community asset without any contrary agreement, the husband received an Epstein credit for those expenses.
Payments treated as support, no credit given: If one spouse voluntarily covers the other spouse’s expenses or debts after separation (for example, continuing to pay the estranged spouse’s car loan or credit cards), the court may decide not to order reimbursement. This is because those payments can be viewed as fulfilling a support obligation rather than creating a debt for the other spouse. For instance, a wife might pay the mortgage and household bills post-separation while the husband moves out; if those payments were effectively providing support (housing) for the family, a judge could deny her any Epstein credit, reasoning that it would be unfair to reimburse her for something that was essentially child or spousal support.
Exclusive use of property offsets debt payment: Suppose after separating, one spouse remains in the family home and uses their own income to pay the mortgage. That spouse can ask for reimbursement of those mortgage payments at trial. However, because they had exclusive use of a community asset (living in the home), the court might reduce the credit or deny reimbursement to balance out the benefit received. In practice, judges often offset an Epstein credit with a “Watts charge” – a calculation of rent for the spouse’s exclusive use of the home. For example, if a husband paid $10,000 in mortgage payments after separation but also lived in the house alone, the court might find that the value of his exclusive occupancy equals what he paid. In that case, under §2626 the judge could decide it’s not appropriate to reimburse him, since his payments were offset by the benefit of living rent-free.

Published Case Law on § 2626

In re Marriage of Feldner (Cal. Ct. App. 1995) – An early post-Family Code decision highlighting that reimbursement for post-separation debt payments is discretionary, not automatic. The Feldner court noted that under §2626 a spouse who uses separate funds after separation to preserve a community asset can request reimbursement (an Epstein credit), but the trial court must consider equitable factors before granting it. Feldner emphasized several exceptions to reimbursement: no credit should be given if the payment was effectively a discharge of a support obligation, or if the paying spouse was also using the asset and the amount paid was not substantially greater than the value of that use. This case solidified the principle that claims for Epstein credits depend on the facts – the paying spouse must not have intended a gift or agreed to assume the debt, and the request should be made by the time of property division.
In re Marriage of Boblitt (Cal. Ct. App. 2014) – This appellate decision defined and applied Epstein credits in a property division dispute. The court explained that an “Epstein credit is the right to be reimbursed by the community for separate property funds used after separation to meet community expenses.” In Boblitt, the wife was awarded an Epstein credit for post-separation mortgage payments she had made on a piece of real estate, but at the same time the court recognized a corresponding Watts charge (rent owed to the community for one spouse’s exclusive use of that property). Consistent with §2626, the case illustrates the trial court’s broad equitable power: it granted reimbursement for the debt payments, while also ensuring fairness by charging the benefiting spouse for her sole use of the asset. Boblitt confirms that courts can mix credits and charges to achieve an equitable division.
In re Marriage of Oliverez (Cal. Ct. App. 2019) – The Oliverez case underscores the discretionary nature of §2626 and how appellate courts review Epstein credit decisions. Here, the trial court’s rulings on various reimbursement claims were challenged, but the Court of Appeal affirmed them, emphasizing that a trial judge has broad discretion in deciding what is “appropriate” under §2626. The appellate opinion noted that it will not second-guess the trial court’s decision to grant or deny Epstein credits so long as it falls within the range of reason (i.e., no abuse of discretion). Oliverez stands for the idea that as long as the family court properly considers the circumstances – such as agreements between spouses, intent, and fairness – its call on Epstein reimbursements will be upheld on appeal.
In re Marriage of Mohler (Cal. Ct. App. 2020) – In this published opinion, the Court of Appeal discussed §2626 in the context of a dispute over post-separation mortgage payments and the use of a family home. After separation, the husband had paid the mortgage on a property that was partly community in character (due to a Moore/Marsden interest) while also living there. The trial court, instead of simply granting a full Epstein credit to the husband, considered the value of his exclusive use of the home. The appellate court in Mohler approved this approach, explaining that §2626 allows reimbursement for debts paid after separation, but the court may also impose Watts charges for one spouse’s post-separation use of a community asset. The decision illustrates how trial courts balance equities: a spouse may get credit for paying a community debt, but that can be offset by a charge for the benefit of sole occupancy. Mohler reaffirmed that §2626 gives courts continuing jurisdiction to ensure fairness in dividing both debts and the benefits derived from community property after separation.

Full Text of California Family Code § 2626

“The court has jurisdiction to order reimbursement in cases it deems appropriate for debts paid after separation but before trial.”

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

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