Responsibility for Spouse's Debt

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Your state’s laws may require you to pay your spouse’s debt. Whether you have liability for your spouse’s debt depends on four factors, the most important being if you live in a common law states or community property state. Learn if you need to pay your spouse’s debts.

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When You May Be Responsible for Your Spouse's Debt

Both spouses must repay a debt when both sign the loan contract as joint borrowers. When only one spouse signs a loan or credit card contract, however, the other spouse may or may not have liability for the debt.

Four factors determine if you have liability for your spouse’s debts:

  • Your state of residence
  • The type of debt your spouse owes
  • When the debt was incurred
  • Any agreement you two signed before marriage

This article reviews each reason why you may have liability for your spouse’s debts. Let’s start with the state law question.

When it comes to family law, states follow two schemes; Community property and common law. Whether you live in a community property or common law state is the most important factor to determine if you have liability for your spouse’s debt.

Community Property States
Source: Bills.com
Alaska*
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
* Optional

Spousal Liability in Common Law States

Spouses living in common law states do not have liability for the other spouse’s debt, as a general rule. But if you reside in a common law state you can’t stop your analysis here, because other factors may come into play. For example, if you lived in a community property state when your spouse signed the contract, you may have liability for the debt.

Spousal Liability in Community Property States

Spouses living in a community property state, or who lived in one when the spouse opened the account, may share liability to pay the debt. This may be true even though only one spouse signed the credit contract as co-debtor.

In community property states, the general rule is both spouses have liability when:

  • The debt was incurred during the marriage, and
  • The debt benefited both members of the marriage, and
  • The creditor sues the non-signing spouse who loses the lawsuit and has a judgment filed against him or her

A creditor who wins a judgment against both spouses can collect from either spouse. The creditor does not have a duty to “even out” the judgment liability between the spouses. A creditor may collect up to 100% from either spouse who is listed on the judgment, whichever is more convenient for them.

As a practical matter in community property states, creditors tend to avoid suing both spouses, as doing so complicates the process of obtaining a judgment. However, this does not mean an aggressive creditor will not pursue all of its available rights to collect a debt.

One important disclaimer: Community property laws are unique to each state. Your state’s laws may vary from the general rules. Therefore, consult with a lawyer in your state who can review the details of your situation and give you accurate advice about your rights and liabilities under your state’s laws.

The Type of Debt Your Spouse Owes

In either a community property or common law state, you may need to pay your spouse’s debt if:

  • The debt was a necessity, such as required medical care, and
  • Your state follows the doctrine of necessaries

Most states require spouses to pay for the necessary care for each other. This is called the doctrine of necessaries or doctrine of necessities. However, in some states such as Florida, state courts struck down this doctrine and do not require spouses to pay for each other’s care. Consult with a lawyer in your state who has family or consumer law experience to learn if the doctrine of necessities applies to you.

Many states have laws that do not require a spouse to have liability for debts related to an unfaithful spouse’s luxuries. A typical example of this is where a spouse buys jewelry for his or her paramour, courts will not give the jilted spouse liability for the debt related to the paramour’s gift.

When the Debt Was Incurred

Pre-marital debt is usually considered separate debt in both common law and community property states. Of course, if the debt from a joint account, both signers of the account share liability for the debt.

If the spouses were residing in a community property state when the debt was incurred, and then moved to a common law state, then the debt may be treated as a community debt. In other words, a court may consider both spouses liable for the debt, even though the spouses now reside in a common law state. This is a tricky area, so consult with a lawyer in your state if you have a mixture of community property debt and common law debt.

Pre-Nuptial Agreement

An ante-nuptial agreement can alter the rights of spouses when it comes to their debts and assets. You or your spouse may promise to pay a debt, even though your state’s law doesn’t require you to do so. If you or your spouse promise before marriage to pay a debt, then a court may find you are obligated to do so.

It is important to note ante-nuptial agreements are binding on both spouses, but are not binding on third parties. A creditor need not pay heed to a pre-nuptial agreement.

Struggling with debt? Contact one of Bills.com’s pre-screened debt providers for a . Recovering from debt might be cheaper than you expect.

Three Recommendations

Beware Joint Accounts

A judgment-creditor may have the right under your state’s laws to seize the funds in joint accounts owned by the judgment-debtor. For this reason, Bills.com does not recommend joint accounts. If you have a joint account with a judgment-debtor, then close the account. Open separate accounts with separate tax ID/Social Security numbers. If you need to transfer funds between your accounts, your bank or credit union will almost certainly allow you to do so electronically.

Learn Your Rights and Liabilities

Go to the Bills.com resource to learn the top-level collection law basics for your state. Do you live in a community property state? Click-through to your state to learn more about the collections laws for your state.

Consult With a Lawyer

If you or your spouse are sued, or you are reasonably certain you are about to be sued, consult with a lawyer in your state who has consumer law experience. Your lawyer will spell out your liabilities, and help you decide what actions you can take to protect your household’s assets. If you cannot afford a lawyer, find a .

Bills Action Plan

Your state’s laws have a large influence on whether you need to pay your spouses’s debts, but there are three other factors in play, too, you need to keep in mind. Follow these steps if your spouse is sued, or is about to be sued for a debt:
  1. Learn your state’s laws
  2. Analyze the type of debt: You may have liability if it’s medical or similar care and support debt
  3. Get legal advice if you live in a community property state
  4. Avoid joint financial accounts
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18 Comments

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  • 35x35
    Apr, 2012
    B
    I live in Oklahoma, I was put on the note of a car my dad purchased in 2008. After the car was unfixable by any type of mechanic the company was told to pick it up. I worked payment arrangements with them since my dad has limited income. Disabled veteran, after only owing 3,000 it jumped to 7,000 after paying the same amount for 1 1/2 years! They were still charging interest and filed a judgement with no notice to us till they atempted to freeze my dads bank account but it's being protected by the bank. I'm a stay at home mom and I married my husband after the fact and we have a joint account. Can they freeze it?
    1 Votes

    • 35x35
      Apr, 2012
      Bill
      You need to take two steps:

      First, consult with an Oklahoma lawyer who has civil litigation or consumer law experience to learn if the plaintiff followed all of Oklahoma's rules when filing the lawsuit. He may be able to vacate the judgment. Also, the lawyer will be able to determine if the interest and charges for the deficiency balance are legal amounts in your state.

      Second, regarding your joint bank account, assume for the time being you were also a defendant in the mystery lawsuit and the creditor has a judgment against you. Your spouse should open a separate account at your bank or credit union immediately. Your name or Social Security number should have no connection to the new account. Have his wages and other income deposited to the new account. When you need funds, use your bank or credit-union's online funds transfer tool to move money back and forth between the two accounts. If the account that includes your name is ever levied, your spouse may continue to pay your household's bills, and so forth.
      0 Votes

  • 35x35
    Apr, 2012
    John
    Hi, Last Fall, my wife wanted to buy a car. At the time, her car was already paid off. She said that she needed a new one (Honda Pilot for $30,000) because it would hold 7 people, instead of the Lexus SUV that she had which could only hold 5 people. I told her that I would not agree to this purchase, and I that I felt that it was ill-advised because the money to pay for it would have to be removed from my children's college funds. A few days later, she came home with a Honda Pilot that she bought for $30,000. I refused to make payments or pay for maintenance. She now filed for divorce and claims that the court will now make me pay for the whole car (all $30,000) plus all maintenance because she was a stay-at-home mom. Does any of this make sense? (I live in New York). John
    0 Votes

    • 35x35
      Apr, 2012
      Bill
      How assets are divided in a divorce varies from state to state, and more significantly, from marriage to marriage. Consult with a lawyer who has family law experience immediately to learn more about your rights, and a preliminary overview of how your assets will be divided.
      0 Votes

  • 35x35
    Mar, 2012
    Fran
    Husband died and now I received a letter that he was given money from a girlfriend. I did not know about this. The girlfriend called me and wants me to make payment arrangements with her. I lived in New Jersey when he did this. He died in florida. I dont think I am responsible.
    0 Votes

    • 35x35
      Mar, 2012
      Bill
      I can't give you legal advice, but I don't think you are responsible for the debt. You should speak with an attorney, preferably the one that handled the probate on your husband's will.
      0 Votes

  • 35x35
    Feb, 2012
    Jason
    We own a house in Michigan. The mortgage is in my wife's name only. We will be moving soon due to my job and don't have the money to make up for the lost value in our house, which would be needed to sell it. We care considering foreclosure since the house is only in my wife's name. Is there any possibility that the bank could come after me in anyway if we foreclose on the home?
    0 Votes

    • 35x35
      Feb, 2012
      Bill
      First, you wrote, "The mortgage is in my wife's name only" and later, "...the house is only in my wife's name." Is the house titled in your spouse's name alone? If it is titled in both of your names, ask a lawyer to create a quitclaim deed to put the house's title in your spouse's name only. Second, are you moving out of Michigan? If so, to which state?

      If you remain in Michigan or a common law state, I do not see a means for the mortgage lender to pursue you for the deficiency balance. If you move to a community property state, there is a chance — a remote one — the lender could pursue both of you for a deficiency balance.
      0 Votes

  • 35x35
    Sep, 2011
    KEVIN D
    We live in Hawaii. My wife wants to buy a home for her daughter in Louisiana as the sole purchaser. I am being asked for my credit history - can this be avoided and will I be liable for the LA mortgage even though the property is in my wife's name only? Thank you
    0 Votes

    • 35x35
      Sep, 2011
      Bill
      Kevin, I can't give you legal advice or tell you what your liability will be. You need to speak with an attorney to get legal advice. I will share a few thoughts with you.

      A lender can choose to ask for your financial information before deciding to lend to your wife. After all, debts that you have may affect her ability to maintain all her obligations. However, not all lenders are going to demand the same information. I suggest that your wife speaks to other lenders, to see if any will process her loan as a sole buyer without reviewing your credit and financial history.

      Hawaii is not a community property state, but Louisiana is. It is my feeling that you would not be liable for a debt not incurred in your name, but you should speak with an attorney to see if Louisiana's community property laws could affect you, even as a resident of a non-community property law state.
      0 Votes

  • 35x35
    Aug, 2011
    Monica
    I live in Virginia, a non-community property state. My husband hired a contractor to paint our home. The contractor fill and was seriously injured. Our home belonged to my husband prior to our marriage (15 years ago). My name has never been added to the title of the house. I am wondering if the contractor sues us, and I am sure he will. Would the case be against my husband only, as he is the sole owner of the house and the person who hired the contractor, or will I be a defendant in the case?
    0 Votes

    • 35x35
      Aug, 2011
      Bill
      If you were not a party to the contract and if you are not on title to the home, then you should not have direct liability.

      However, you should seek counsel from a local attorney, since your husband may have potential liability and that could extend to jointly held assets. You should also file a claim IMMEDIATELY upon receipt of the suit with your home insurance and your umbrella policy insurance agency, since you are very likely covered.
      0 Votes

  • 35x35
    Jul, 2011
    kimberly
    My husband has racked up almost 70,000 in debt over the last 6 months. I was diagnosed with cancer in January and had no idea he was charging up credit cards, paying over 20,000 for 'stock market tips and stock trading online courses'. What can I do to protect myself, our home and my two young sons from this debt. Are you protected if you take out the ad in the paper stating you are not responsible for debt incurred by anyone else. Please help. I have been fully employed for 24 years but I am out on temporary retirement while I deal with my illness
    3 Votes

    • 35x35
      Jul, 2011
      Bill
      You indicated you reside in Louisiana. As you are aware, Louisiana is a unique state, and I do not mean just its delightful cuisine. All other US jurisdictions base their state laws on English common law, that each have adapted over the last 250 years. Louisiana, however, is based on Napoleonic code, which is different in some regards. I have not studied Louisiana law, and therefore cannot comment on its unique brand of community property law. Accordingly, consult with a Louisiana lawyer who has family law experience to learn more about your rights and liabilities.
      0 Votes

  • 35x35
    Apr, 2011
    Sarah
    I live in Wisconsin and am a party to a foreclosure lawsuit for a home that I purchase prior to my current marriage. The lawsuit lists my husband as a co-defendant and they indicate they will seek a deficiency judgement. He's not on any of the mortgage documents (I didn't even know him then) so how can they seek a judgement against him??
    0 Votes

    • 35x35
      Apr, 2011
      Bill
      Wisconsin is a community property state, but like all community property states, Wisconsin legislators added their own twists and interpretations to the community property concept when they passed this statute in the mid 1980s. One hallmark of Wisconsin community property law is that creditors must disclose a debt to the applicant's spouse at the time of the loan application. How Wisconsin handles pre-marital debt is a mystery to me because my study of Wisconsin community property law is shallow, and I am not licensed to practice law in Wisconsin. Consult with a Wisconsin lawyer who has community property experience to learn the answer to your question.
      0 Votes

  • 35x35
    Feb, 2011
    Jake
    My wife had a credit card thast she stopped paying on while we lived in Texas (a commmunity property state) now we are living Colorado. If the creditor tried to sue us using the laws of Texas wouldn't the Texas judgement exemptions also apply?
    0 Votes

    • 35x35
      Feb, 2011
      Bill
      One could write a 2,000-word argument in favor of either side of the issue you raised, but it would really come down to which way the local judge wants to go. I realize I just gave you a non-answer, but many questions in law come down to the facts of the matter at hand and which lawyer presents a more convincing argument in their pleadings. Your question is one of them. If you are Colorado resident, as opposed to just living there at the moment and have residency elsewhere, consult with a Colorado lawyer who has experience in consumer law or civil litigation.
      0 Votes