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Responsibility for Spouse's Debt

Responsibility for spouse's debt as a spouse with a nice car and a private jet

Updated: Jun 25, 2014

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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*
Idaho
New Mexico
* 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 . 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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26 Comments

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  • ER
    May, 2014
    El
    My husband and I live separately even though we are not separated legally. We have divided bills and have no co-signed debt. The house he and the kids live in is in my name and I still pay the mortgage as an informal form of child support. I found out he has not been managing his money and has run up $10K+ in credit card debt for eating out, gas, groceries, travel, sports clubs, etc. Am I liable for his debt? If we legally separated would I be liable? Could he sta on my health insurance if we legally separated? We live in KY.
    0 Votes

    • BA
      May, 2014
      Bill
      See the Bills.com article Kentucky Collection Laws and specifically the section "Kentucky Spousal Debt Liability" to learn a general answer to your central question. As for the health insurance question, that is best answered by your health insurance administrator or your employer's human resources department.
      0 Votes

  • TW
    Feb, 2014
    Thos
    I discovered my spouse ran up a $32K credit card debt on her personal, non-joint credit card account. We do not hold any joint credit card or bank accounts. We do hold our home as joint property. To what extent am I liable for my spouse's credit card debt?
    0 Votes

    • BA
      Feb, 2014
      Bill
      Your state of residence and the source of debt are keys to answering this question.

      You indicated you reside in Virginia. Virginia is a common law state when it comes to family law. Under Virginia law, spouses have liability for their own debt and joint debt, but not separate debt.

      There is an exception to that rule, however, in Virginia and other states. Virginia's "doctrine of necessaries" rule makes spouses liable for each other's debts incurred for necessary living expenses such as shelter, food and medical care. If the $32,000 credit card debt's source was medical bills, paying the mortgage, or for the household's groceries, then you will have liability for the debt.

      You mentioned your home has a concurrent title. Let's say for the sake of argument your spouse defaults on the credit card payments, and the bank or its collection agent files a lawsuit, which your spouse loses. With a judgment in hand, the judgment-creditor has the option to place a lien on the judgment-debtor's property, including jointly titled property. See the Bills.com article Virginia Collection Laws to learn more about your rights and liabilities as a Virginia resident.
      0 Votes

  • RH
    Feb, 2014
    Rob
    My wife and I live in KY. I bought a house while we were married but kept the note, mortgage, and warranty deed in my name only. She was later sued by a third party agency who was rendered a judgment lien on real estate. I came to find out they placed a lien on my house. How are they able to do this when nothing is in her name? Thank you.
    0 Votes

    • BA
      Feb, 2014
      Bill
      You mentioned Kentucky. Kentucky is a "marital property" state, which adopted some of the characteristics of community property law. I hasten to add Kentucky is not a community property state. I cannot find a statute or case law allowing a judgment-creditor to attach a lien to marital property not titled in the judgment-debtor's name. To the contrary, the case law I find suggests Kentucky follows traditional common law when it comes one spouse's liability for the other spouse's debt. In other words, I don't think the court should have allowed the judgment-creditor to place a lien on property titled in your name alone for a judgment filed against your spouse.

      Consult with a Kentucky lawyer who has civil litigation experience. You may be able to file a motion to remove the lien on your property.
      0 Votes

  • TP
    Feb, 2014
    Tiffant
    My husband and I own our primary home, which is paid off, and is worth about $80,000. My husband and my brother-in-aw have a joint mortgage on a home, horse stables and some property that was bought in 2005. After about 2 years; my husband wanted out from under the note so he sold out to my brother-in-law. The bank told my brother-in-law that they would refinance my husband’s name off the mortgage, after 1 year of on time note payments. But after a year, the bank would not refinance my brother-in-law without another co-signer, so needless to say, my husband’s name stayed on the note. Well about 5 months ago my brother-in-law quit paying the note, due to the bank holding insurance money for a claim to damages to property in a hail storm. My brother-in-law eventually paid for the repairs out of his own pocket, and they wouldn't reimburse him, and still hold $6000 of insurance monies. My brother-in-law has also not paid the real estate taxes for the either. The mortgage in in default of about $20000, with $230,000 still being owed on the loan. My brother put his primary home in his 17yr old son’s name at about the time he quit paying. He also has another mortgage for a home that he rents to my parents. My questions are Can I take my husband’s name off our primary home and the banks not come after it for deficiency? Or are they still able to come after my home? Will I personally be liable for some of the deficiency? Will the court split the deficiency evenly?
    0 Votes

    • BA
      Feb, 2014
      Bill
      You have a lot of moving parts in your situation. I would do you a disservice by venturing a guess as to what a court would decide regarding your spouse's liability for the deficiency balance, and what property would be vulnerable to a lien. Consult with a lawyer in your state who has civil litigation experience. He or she will analyze your situation, apply your state's statutes and case law, and give you a better guess than what I can offer.
      0 Votes

  • BM
    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?
    0 Votes

    • BA
      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