Debt and Marriage: When Do I Owe My Spouse's Debts?

Whether you are liable for your spouse's debts depends on whether you live in a community property or equitable distribution state.

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Whether you and your spouse are liable for each other's debts depends mostly on where you live. In the handful of states with "community property" rules, most debts incurred by one spouse during the marriage are owed by both spouses. But in states that follow "common law" property rules, debts incurred by one spouse are usually that spouse's debts alone, unless the debt was for a family necessity, such as food or shelter for the family or tuition for the kids. (These are general rules; some states have subtle variations in how they treat joint and separate debts.)

These rules also apply to same-sex marriages in the states that allow them (Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont) and to same-sex domestic partnerships and civil unions in states where those relationships are the equivalent of marriage (California, Connecticut, Nevada, New Hampshire, New Jersey, Oregon, and Washington State), but not in states where the relationship does not confer all the rights of marriage (District of Columbia, Hawaii, Maine, and Wisconsin).

Community Property States

The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.)

Debts. In community property states, most debts incurred by either spouse during the marriage are owed by the "community" (the couple), even if only one spouse signed the paperwork for a debt. The key here is during the marriage. So if you incur a debt, such as a student loan, while you're single, and then get married, it won't automatically become a joint debt. (An exception is where a spouse signs on to an account as a joint account holder after getting married.) Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.

After a legal separation or divorce, a debt is generally owed only by the spouse who incurred the debt, unless the debt was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.

Income and property. In community property states, a couple's income is shared as well. All income earned by either spouse during marriage, as well as property bought with that income, is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse, as well as separate property owned before marriage that's kept separate, are the separate property of one spouse. All income or property acquired before or after a divorce or permanent separation is also separate.

What property can be taken to pay debts? In a community property state, creditors of one spouse can go after the assets and income of the married couple to make good on joint debts (and remember, in a community property state, most debts incurred during marriage are considered joint debts).

Creditors can go after joint assets in a community property state no matter whose name is on the title document to the asset. For example, a business owner's name may not be on the title to her spouse's boat, but in most community property states, that won't stop a creditor from suing in court to take the boat to pay off the business owner's debts (assuming the boat was purchased with community funds, and not separate funds).

As to one spouse's separate debt, such as one spouse's child support obligation from a prior relationship, or a debt in one spouse's name only where the spouse hid the fact that he or she was married, a creditor can go after only that spouse's half of the community property to repay the debt.

Removing a spouse's liability. Couples in community property states can sign an agreement with each other to have their debts and income treated separately. Signing a pre- or postnuptial agreement like this can make sense for a couple before one spouse goes into business. (But if you're already in business, signing an agreement now won't protect your spouse from liability for business debts that you already owe, only from liability for future business debts.)

You can also sign an agreement with a particular store, lender, or supplier, stating that the creditor will look solely to your separate property for repayment of any debt, essentially removing your spouse's liability for any obligation or debt from the contract -- if you can get the other party to agree.

Bankruptcy. Even if only one spouse files for Chapter 7 bankruptcy in a community property state, all of the eligible community debts of both spouses will be discharged (wiped out).

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by: , J.D.

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