Spouse Debts in Common Law States

(Page 2 of 2 of Debt and Marriage: When Do I Owe My Spouse's Debts?)

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In a "common law" property state, which is any state not listed above as a community property state, debts incurred by one spouse are that spouse's debts alone, and income earned by one spouse does not automatically become jointly owned.

Debts. Debts are owed by both spouses only if the debt benefits the marriage (for example, the debt was for food, clothing, child care, shelter, or necessary household items) or the debt was jointly undertaken -- for example, if both spouses signed a contract requiring them to make payments on the debt, if both spouses' names were on an account or title to property, or if a creditor considered both spouse's credit information before making the sale or loan. The same rules hold true after permanent separation but before divorce.

All other debts, such as a business debt from one spouse's business or a car loan for a car whose title is in one spouse's name, are considered a spouse's separate debts.

Income and property. Generally, in most common law states, income earned by one spouse during the marriage belongs to that spouse alone, if it is kept separate. And any property bought with separate income or funds during the marriage is also separate property (unless the title to the property is put under both spouses' names). In addition, gifts and inheritances received by one spouse, as well as property owned by one spouse before marriage (and kept separate), are the separate property of that spouse.

However, if income earned by one spouse is put into a joint bank account, that income or property becomes joint property.If joint funds are used to buy property,the property is also owned jointly(unless title is taken in the name of one spouse only). Jointly owned property can include equity in a jointly owned house, household goods, jointly owned vehicles, and jointly owned bank accounts, retirement plans, and stocks or mutual funds.

As you may have guessed, for property that has a title document,such as real estate and vehicles, whose name is on the title indicates who owns the property in common law property states. For instance, if a car is in only one spouse's name, it's considered that spouse's separate property. If a house is in both spouses' names, the house is joint property, even if one spouse doesn't contribute anything toward the mortgage payments.

What property can be taken to pay debts? In a common law property state, creditors of one spouse can go after the income or property of the other spouse -- or joint property -- only if the debt was incurred for joint purchases or for purchases that were made for family necessities. In some common law states, a creditor can also go after joint property to pay the separate debts of one spouse (even if the debt was not family-related), but in most states a creditor can take only half of the money in a joint account.

Example

Simon's auto detailing business fails owing $30,000 to suppliers and other creditors. Simon runs the business by himself, without the help of his registered domestic partner, so the business debts are considered his separate debts. Because Simon lives in a state with common law property rules, these creditors cannot garnish his partner's income or take his partner's separate property, though they may be able to sue to take money from the joint bank account Simon has with his partner. Whether the creditors can go after other property held jointly by Simon and his partner, such as a jointly owned house, depends on the state they live in and how they hold title to the house. (This example assumes that Simon and his partner live in a state that treats registered domestic partners the same as married spouses.)

In about half of the common law property states, a creditor cannot go after certain joint property to pay the separate debts of one spouse: If a couple holds property in "tenancy by the entirety," a creditor can go after the property to pay only joint debts, not separate debts of either spouse. And in some states, such as Florida, most joint property is automatically considered to be held in tenancy by the entirety and so is immune from being taken to pay one spouse's separate debt.

Example

Will Horton rents party supplies and construction equipment in Albany, New York, but his business is struggling to pay its bills. Will's wife Amanda is an independent jewelry appraiser who makes a good living. When Will can't pay his main supplier for several months, the creditor threatens to sue the Hortons. Because the Hortons hold title to their house in "tenancy by the entirety," a creditor cannot put a lien on the house and force its sale as long as Amanda is alive. If Amanda and Will were to sell the house, however, the creditor would have to be paid off with Will's half of the proceeds.

Ask a local lawyer about your state's rules.For further information on whether a creditor can go after your joint property to pay the separate debts of one spouse, see a debt collection or bankruptcy lawyer in your state. One good resource for finding a lawyer in your state is Nolo's Lawyer Directory. Nolo's directory provides a comprehensive profile for each attorney that tells you about the lawyer's experience and training, and Nolo has confirmed that every listed attorney has a valid license and is in good standing with their bar association.

As to a spouse's separate property, creditors of one spouse cannot legally reach the other spouse's separate money, property, or wages to repay the first spouse's separate debt.

Example

When Scott's business fails, he owes $53,000 to suppliers and other creditors. Because Scott and his wife live in a state with common law property rules, these creditors can sue Scott to collect the money owed, but cannot go after Scott's wife's inheritance. In some states, the creditors will be able to go after joint assets such as a joint bank account.

Your spouse shouldn't guarantee your business debts. It follows that if you live in a common law state and you own a business that your spouse is not involved with, you don't want your spouse to personally guarantee any of your business debts. Unless your spouse cosigns a loan or personal guarantee, your spouse won't be liable for your business debts -- if you keep your money and property separate.

Bankruptcy. In a common law property state, if only one spouse files for Chapter 7 bankruptcy, only that's spouse's joint and separate debts would be discharged; the other spouse's separate debts would not be discharged.

Further Help With Debts and Marriage

For more information on sorting out personal debt and marital property, see Solve Your Money Troubles: Debt, Credit and Bankruptcy, by Robin Leonard and Margaret Reiter (Nolo). For guidance on business debts and spouses' liability, see Save Your Business: 10 Crucial Strategies to Survive Hard Times or Close Down & Move On, by Ralph Warner and Bethany K. Laurence (Nolo). If you want to learn about how your spouse's credit can affect yours, see Nolo's article Protect Your Good Credit After Marriage.

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by: , J.D.

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