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Old 14.11.2019, 01:58
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Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Hi All -

I recently married by Swiss partner, and finally moved to Switzerland to be with him. I knew that he had some old debts/financial issues when he was younger, but I didn't really understand the Swiss way and how much this can potentially impact his or our future. All the things I don't understand yet about the Swiss way are really smacking me on the head this week this week and I could use some help!

~2 years ago he went through what I thought was the Swiss equivalent of Bankruptcy, but now having read more threads on here about Swiss "bankruptcy" I've realized that is not a thing. Today he told me one of the companies he owes money to in coming after him again and he has to open a case. Apparently the court also wants his Wife's financial information (that's me). My understanding of Swiss marriage laws is that I'm not responsible for his debts (especially debts from before we were married), and I'm not comfortable sharing my financial information with anyone (courts included) in relation to this (we keep separate finances, and I'm happy to keep it that way). I asked him last month to set up an appointment for us with a (hopefully English speaking) Notar to set up the separate property regime, but that has not been done, so we're currently functioning on the default property laws as far as I know.

I'm looking to better understand my requirements in all of this (if the judge is asking for my financial information do I have to provide it? what are the repercussions to him and me if I refuse? and to what extent can they require things? All of my assets are in the US, I don't even have a Swiss bank account yet), and is there any way I could be held accountable for his old debts? To make this more exciting, he apparently has 10 days to respond, and I am out of the country for the next 10 days

I'm located in Aarau and travel to Zurich often. A previous thread on legal services suggested free legal services from https://www.zav.ch - does anyone else have suggestions for free or cheap legal advice, or experience / authority with this sort of thing to help me understand things better?

Also, reading up on the "bankruptcy" things has brought up some additional concerns for me. At this point my understanding is that he probably has a paper that says he can't pay the debt and it's good for 20 years, but the debtors can still come after him every 2 years, and if in 20 years he still doesn't have the funds he'll get another paper that is good for 20 years. Is this correct? So he will never be in a position to be financially healthy and have savings unless he is able to pay off the debt?
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Old 14.11.2019, 03:07
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

I found this in Beobachter, a reputable magazine that comments on the legal aspects of social situations. https://www.beobachter.ch/geld/schul...-mannes-zahlen
It is, however, from 2011. I hope that someone will be along, soon, to say whether anything’s changed in these arrangements, since in then.

Muss ich die Schulden meines Mannes zahlen?
Frage: Mein Mann hat Geschäftsschulden in Höhe von 12'000 Franken. Ich habe noch etwas Vermögen auf der Seite – muss ich jetzt davon seine Schulden begleichen? Und hätte sich am Sachverhalt etwas geändert, wenn wir Gütertrennung vereinbart hätten?

Grundsätzlich haftet ein Ehegatte nicht für die Schulden des andern – ausser in zwei Fällen:
1. Wenn der Ehegatte dem Gläubiger gegenüber erklärt hat, mitzuhaften. Zum Beispiel bei einem gemeinsam unterzeichneten Darlehensvertrag.
2. Wenn es sich um Schulden für laufende Bedürfnisse der Familie handelt, wie etwa Lebensmittel, Kleidung, kleinere Haushaltswaren, kleinere Reparaturen oder übliche Auslagen für die Gesundheit wie Prämien oder Franchise der Krankenkasse. Für solche Ausgaben haften Eheleute solidarisch. Das heisst: Jeder Ehegatte kann einzeln für den ganzen Betrag belangt werden.

Da es sich bei den Schulden Ihres Mannes um Geschäftsschulden handelt und Sie wohl nichts mitunterzeichnet haben, haften Sie nicht dafür.

Ob Sie und Ihr Mann Gütertrennung statt der normalen sogenannten Errungenschaftsbeteiligung vereinbart haben, ist für die Schuldenhaftung nicht relevant. Auch wenn Sie Gütertrennung vereinbart hätten, hätte bezüglich Schuldenhaftung das oben Ausgeführte gegolten.

Ein häufiges Missverständnis
Die Gütertrennung spielt einzig bei der Aufteilung des ehelichen Vermögens beim Tod eines Ehegatten oder bei einer Scheidung eine Rolle.

Gehört das Geschäft dem Mann, hat er es während der Ehe aufgebaut und gilt Errungenschaftsbeteiligung, muss er der Frau bei einer Scheidung die Hälfte des Werts der Firma auszahlen. Das kann ihn in ernsthafte finanzielle Schwierigkeiten bringen. Mit Gütertrennung hingegen müsste er der Frau nichts auszahlen – was wiederum für sie stossend sein kann, etwa wenn sie auf eine eigene Berufstätigkeit zugunsten von Haushalt und Kindern verzichtet hat, um dem Mann den Rücken freizuhalten.

Die Gütertrennung – oft zu Unrecht als Lösung angesehen, um der Haftung für Geschäftsschulden des Ehemanns zu entgehen – sollte also gut überlegt sein. Oder es sollte für die allfällig benachteiligte Person eine finanzielle Kompensation vereinbart werden.
Deepl translation, fixed a little:

Do I have to pay my husband's debts?
Question: My husband has business debts of 12,000 francs. I still have some assets on my side - do I have to pay off his debts now? And would the facts have been different, if we had agreed on the separation of property?

In principle, one spouse is not liable for the debts of the other - except in two cases:

1. if the spouse has declared to the creditor that he/she is jointly liable. For example, in the case of a jointly signed loan agreement.
2. in the case of debts for the family's current needs, such as food, clothing, small household goods, minor repairs or usual health expenses, such as health insurance premiums or franchises. Spouses are jointly and severally liable for such expenses. This means that each spouse can be charged individually for the entire amount.

Since your husband's debts are business debts and you have probably signed nothing, you are not liable for them.

Whether you and your husband have agreed on the separation of property instead of the normal so-called participation in the achievement is not relevant for debt liability. Even if you had agreed to separate property, the above would have applied to debt liability.

A frequent misunderstanding

The separation of property only plays a role in the division of matrimonial property in the event of the death of a spouse or divorce.

If the business belongs to the husband and he has built it up during the marriage, and if the share in the gains is valid, he must pay the wife half the value of the company in the event of a divorce. This can cause him serious financial difficulties.

With separation of property, on the other hand, he would not have to pay the woman anything - which in turn can be unfair for her, for example if she has given up her own job in favour of the household and children in order to keep her husband's back free.

The separation of property - often wrongly seen as a solution to avoid liability for the husband's business debts - should therefore be thought through in some depth, before being chosen. Or a financial compensation should be agreed for the possibly disadvantaged person.

Last edited by doropfiz; 14.11.2019 at 03:18.
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Old 14.11.2019, 03:17
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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...he apparently has 10 days to respond, and I am out of the country for the next 10 days
In general, with such formally set deadlines, it is permissible to write asking for a short, reasonable extention, especially if there is a good reason. For example:
"My wife is aware of your request for her financial information. She is, however, currently out of Switzerland for her own work/on vaction/visiting her brother who is ill (whatever such brief explanation as applies) and will not be able to attend to your request until after her return on TRUEDATE."
It may well be much better still if you yourself write, since then you know how and when it is done. For that, of course, get your husband to send you the letter/order/request/judgment than came, asking for your details. Depending on what it is, there may even be a section called "Rechtsmittelbelehrung" which will set out exactly your rights and duties from the date of issue of that document.

There may be a specific mail address on that letter. In general, the proper Swiss way for formal matters is a registered letter (in an envelope, handed in at the post office counter). Since you are abroad, you might try by mail to the specific address on the document, copying in your husband to the mail. If there is no specific mail address on that document, then I don't advise using a generic one you can google, but instead that you phone that office/authority to ask for the relevant mail address. Then, if he is in Switzerland, he could print it out and send it by registered letter.
"My husband has informed me that you have requested my financial information. I am, however, currently out of Switzerland for my own work/on vaction/visiting my brother who is ill (whatever such brief explanation as applies) and will not be able to attend to your request until after my return on TRUEDATE."
Please note that "to attend to your request" does not mean that you will fulfil it. That is, after all, what you're now trying to find out about, to what extent you will be obliged to do so.

EDIT: Please be very sure WHO is requiring your financial information.
  • If it is a formal Court Order, then you must respond.
  • If it is a government letter asking for information, then it is wise to respond.
  • If, on the other hand, it is a debt-collection company such as Intrum Justitia, then you should not reply without seeking proper legal advice, because they have a reputation of hounding people beyond the limits of what is reasonable in terms of the law.
In other words: the onus is now on YOU to find out who, exactly, is requiring the information, and why, and in terms of which authority.

Last edited by doropfiz; 14.11.2019 at 08:18. Reason: typo
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Old 14.11.2019, 03:41
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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Today he told me one of the companies he owes money to in coming after him again and he has to open a case.
You need to know how "he" (your husband, or the creditor?) is "opening a case", and where, and to what end.

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Apparently the court also wants his Wife's financial information (that's me).
The Court is only involved once a case is already running. Which Court? For what purpose?

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My understanding of Swiss marriage laws is that I'm not responsible for his debts (especially debts from before we were married),
Yes, that's right, with the exceptions as set out in the Beobachter article above.

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and I'm not comfortable sharing my financial information with anyone (courts included) in relation to this (we keep separate finances, and I'm happy to keep it that way).
You and your husband, by virtue of being married, will have to submit a joint tax form. That's the way it works here. You can no longer keep your finances separate, at least not with regard to full declaration to the tax authorities, of all your and all his earnings and all your and all his assets worldwide. That's the law.

However, whether the "companies he owes money to" and whether "the Court" necessarily has/have the right to access to your tax declarations, I don't know. It is important, right now, for you to get the documents from your husband to say who, exactly, is now asking for your financial info, and in what way they might be entitled to it.

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I asked him last month to set up an appointment for us with a (hopefully English speaking) Notar to set up the separate property regime, but that has not been done, so we're currently functioning on the default property laws as far as I know.
You yourself can set up such an appointment. Yes, it should definitely be with someone English-speaking, or else you could take along your own translator. You might like to contact the forum user Mullhollander to ask him about this. https://www.englishforum.ch/members/...hollander.html
He provides servies in accounting and tax, speaks English and German fluently, and knows a lot about bureacratic procedures in Switzerland.

I took the liberty of numbering some of your questions.
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I'm looking to better understand my requirements in all of this
  1. Quote:
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    if the judge is asking for my financial information do I have to provide it?
    If a Judge of a Court orders it, then yes, you will have to obey.
  2. Quote:
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    what are the repercussions to him and me if I refuse?
    For you, you would be in default of Court, and that would carry some penalties (I don't know which, and anyway it will most likely depend on which Court).
  3. Quote:
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    and to what extent can they require things?
    Certainly a Court can require things of you. However, it is not clear at this point who, in fact, is making what Court case. About this you need to ask your husband to send you the documents.
  4. Quote:
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    All of my assets are in the US, (I don't even have a Swiss bank account yet), and
    At least for tax purposes, all of your assets and all of your earnings, plus all of your husband's assets and debts, and all of his earnings, worldwide, must be declared by you on the joint tax form of you (plural) as a couple. A Court could, potentially, demand to see your tax documentation. But you really need to know what the Court is actually saying, and who is setting the 10 days.
  5. Quote:
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    is there any way I could be held accountable for his old debts?
    Probably not, according to the article I posted above.

Last edited by doropfiz; 14.11.2019 at 08:19.
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Old 14.11.2019, 07:32
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Can't add much to the above, but if you looking for general info on property regimes and bankruptcy.

https://www.ch.ch/en/matrimonial-regime/

https://www.ch.ch/en/bankruptcy

https://www.ch.ch/en/insolvency-advice-support/
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Old 14.11.2019, 08:58
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Cheap legal advice will always remain so, find a proper lawyer for this as evidently it is a big bigger than Chf 3.50 owed to the local cafe and you imply you have quite large assets in the US
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Old 14.11.2019, 09:25
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

We are pursuing a case against a debtor and your understanding of the Verlustschein (the paper your husband has) is the same as mine, ie it lasts for 20 years and can be reactivated throughout that time period, and then reissued for a further 20 year period.

I would imagine being in debt here is very uncomfortable. I hope matters get resolved for you.
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Old 14.11.2019, 09:26
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Quote:
Cheap legal advice will always remain so, find a proper lawyer for this as evidently it is a big bigger than Chf 3.50 owed to the local cafe and you imply you have quite large assets in the US
On the other hand, even a quick google-search makes it very clear, that in Switzerland for debts one accumulated before the wedding the other is not liable for. Not even tax-debts.
If the salary of the part who has debts is being garnished, the income of the spouse is being taken into consideration though when calculating the possible height of the garnishment.

I'm a bit surprised OP got married first and now wants to secure separation of property after, as they say the knew about the problem in advance. Still, it's easy to do and if the partner has a tendency to pile up debts it is definitely the thing to do quickly.

edit: you can do it retroactive to the day of the wedding.
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Old 14.11.2019, 09:37
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

You are not response for these debts (well should not under proper circumstances), most likely they want to know your situation since you are now his legal partner to determine if his financial situation has changed enough so he can start paying monthly amounts (or have a change in the monthly amounts currently being paid)

And yes, in European countries it is nothing weird to either pay your debts or carry them along till the day one dies (after which they often become part of the heritage), also it is normal to negotiate about debts, if for example he owes a total of 100.000,- and it is clear that for years to come he will not be able to pay than you could offer them for example 50.000,- and demand that if they take it that the full debt is wiped away.
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Old 14.11.2019, 09:54
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

get a tactical divorce. problem solved!
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Old 14.11.2019, 10:10
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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I'm a bit surprised OP got married first and now wants to secure separation of property after, as they say the knew about the problem in advance.
They knew only half or even a quarter of the real problem. The partner said they had a bankruptcy. This means in other countries that you are relived of all or at least most of your debts. But not in Switzerland were no real bankruptcy process exists and debts are for at least 20 years and can even be "refreshed" indefinitely.

I assume the curt wants to know the financial details of the spouse to determine the minimum living cost and issue an wage arrestment on the husbands income. The more the wife is independent and does not depend on the husbands financial support the higher the wage arrestment will be (and also the sooner the debts are gone).

@Dbibeau As you now live in Switzerland. All your world wide income and also your worldwide assets are taxable in Switzerland and must be disclosed on the joint tax return.

If you do not wish to fully disclose it to the court a statement that your are fully finical independent and you do not rely on the husbands support might be good enough. May be they want also know if you could support his basic needs (health insurance, food, and housing) as well.

In the end it is simply. Unless he dies and you do not accept the inheritance (not only assets but also all the debts are part of the inheritance) the outstanding debts will only vanish if you find an agreement with the creditors and/or pay what is owed back.
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Old 14.11.2019, 10:22
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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you can do it retroactive to the day of the wedding.
Are you sure?

Tom
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Old 14.11.2019, 10:34
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

There are a lot of well meaning people on here giving you advice, but the reality is that none of it can be relied upon because we don’t actually know the circumstances and in legal terms that is always key to good legal advice.

Honestly I would go so far as to say that you are also clueless about the true reality of your husband’s financial situation, you are being drip feed and you have no idea how he is representing the situation to the rest of the world.

You need to have a very serious conversation with your husband and get to the bottom of this and you need to get legal advice from a competent professional. And you need to do it PDQ because it could have serious consequences foryour future financial well-being, not to mention your marriage.

This is not the time to be faffing around soliciting the opinions of random people on the internet.
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Old 14.11.2019, 10:49
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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The partner said they had a bankruptcy. This means in other countries that you are relived of all or at least most of your debts..
Actually it does not, not even in the UK with their quirky version. It simple means that currently creditors cannot succeed legally in recovering the debts. Only a discharged bankrupt has their debts written off and that can take anything from a year to a life time.
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Old 14.11.2019, 11:50
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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They knew only half or even a quarter of the real problem. The partner said they had a bankruptcy. This means in other countries that you are relived of all or at least most of your debts. But not in Switzerland were no real bankruptcy process exists and debts are for at least 20 years and can even be "refreshed" indefinitely.

I assume the curt wants to know the financial details of the spouse to determine the minimum living cost and issue an wage arrestment on the husbands income. The more the wife is independent and does not depend on the husbands financial support the higher the wage arrestment will be (and also the sooner the debts are gone).

@Dbibeau As you now live in Switzerland. All your world wide income and also your worldwide assets are taxable in Switzerland and must be disclosed on the joint tax return.

If you do not wish to fully disclose it to the court a statement that your are fully finical independent and you do not rely on the husbands support might be good enough. May be they want also know if you could support his basic needs (health insurance, food, and housing) as well.

In the end it is simply. Unless he dies and you do not accept the inheritance (not only assets but also all the debts are part of the inheritance) the outstanding debts will only vanish if you find an agreement with the creditors and/or pay what is owed back.
If his salary is being garnished (Lohnpfändung) a separation of property will not help the wife, as it is about living costs as a couple now.

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Are you sure?

Tom
Yes, we did this. 5 years back to the wedding day. Both have to agree of course. It was simple.
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Old 14.11.2019, 12:00
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Can somebody give me a definition of «due dillegence» please ?
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Old 14.11.2019, 12:14
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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Can somebody give me a definition of «due dillegence» please ?
Gebührende Sorgfalt or - in connection to this thread a bit kinky: Im Verkehr erforderliche Sorgfalt.

Funny, in German there are lots of phrases, I wonder if the German speaking lot more often gets themself in troubles?
"Drum prüfe, wer sich ewig bindet" or "Augen auf bei der Partnerwahl".

Anyway, for due dilligence it's a bit late for OP now, no?
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Old 14.11.2019, 12:37
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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There are a lot of well meaning people on here giving you advice, but the reality is that none of it can be relied upon because we don’t actually know the circumstances and in legal terms that is always key to good legal advice.

Honestly I would go so far as to say that you are also clueless about the true reality of your husband’s financial situation, you are being drip feed and you have no idea how he is representing the situation to the rest of the world.

You need to have a very serious conversation with your husband and get to the bottom of this and you need to get legal advice from a competent professional. And you need to do it PDQ because it could have serious consequences foryour future financial well-being, not to mention your marriage.

This is not the time to be faffing around soliciting the opinions of random people on the internet.
I am a retired American bankruptcy and tax lawyer. I have published articles on cross-border insolvency. This is correct advice. Do not rely on the Internet. Sadly you seem not to have been aware of your spouse’s financial situation before marriage. There was no pre-nup. You did not ring-fence your assets in a bullet-proof American trust impervious to Swiss courts. More’s the pity but you are not without remedies. I am retired; I do not accept new clients. But you need, now, to protect yourself. If you can afford it get advice from a good Swiss and a good American lawyer. There are many notaries and lawyers who will take fees from you: most are incompetent. I do not know your situation but the cynical comment about a strategic divorce may turn out relevant. My grandfather, a famous actor in his day, died penniless in Zurich and divorced my grandmother, longtime resident in NYC, in his 70s to get better support. When I applied for facilitated naturalisation my application was accelerated (as I now know) based on my net worth. Ditto for my adult children; the minor children were naturalised with me. That is Switzerland.
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Old 14.11.2019, 12:43
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

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Can somebody give me a definition of «due dillegence» please ?
Depends on context. Usually means honest appraisal with right of reply by the accused or affected. In other words, not partisan self-blinding: in the political context. But (without reading the whole thread to find your reference) in the OP’s case might mean the obligation to conduct research before entering into a commitment.
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  #20  
Old 14.11.2019, 12:53
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Re: Legal advice needed - what's the deal with my (Swiss) husband's old debts?

Without knowing all the circumstances, if the OP married with a separation of goods, then the debts are not hers. If there was no separation of goods she can be held jointly liable.

However, even if kept alive, and it has to be done properly with registered letters, the debt dies after I believe 10 years. There have been several changes to the law in recent years, but the best advice I can give is go to a good lawyer and spend a few hundred francs to obtain the correct and up to date legal position.
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