When spouses are not living together, it can be difficult to determine which spouse is legally responsible to pay debts. The timing of when the debt was incurred, the nature of the debt and state law are important
considerations in this assessment.
At common law, the spouse – typically the husband – was legally liable for the support of the other spouse. This right could be enforced on the spouse, either by the other spouse or by third-party creditors. Today, some states have established statutes that require a spouse to be responsible for necessary or family expenses, even in the absence of an express agreement to pay such a debt.Under this doctrine, necessary items are usually included. What is considered “necessary” varies in each state. However, necessaries usually cover food, shelter, clothing and medical expenses. They may also include such expenses as lodging and attorney fees. In community property states, the spouse may be required to use his or her separate property in order to support a spouse if he or she lacks adequate community property to provide for him or her. However, states often have caveats in these laws that do not require the spouse to continue support when the spouses no longer live together unless there is a written agreement to the contrary.
If there is an official separation agreement for the spouses, it likely states which spouse is responsible for which debt. When a couple receives a legal separation, the process and orders that result are akin to divorce decrees. Orders can be made while the spouses are separating that set out provisions for property division, spousal support, custody matters and child support. When the spouses are legally separated, any new debts are usually considered the separate debt of the spouse that incurred them.However, not all states recognize legal separation. In that case, debts may continue to allot until the divorce filing or the divorce decree, depending on state law. Individuals in jurisdictions that do not allow legal separation should ensure that they protect their financial security by getting orders from the court to prohibit the acquisition of new debt while the divorce is pending.
Community Property States
Community property states hold that all income, assets and debts incurred during the marriage are jointly and equally owned by both spouses. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are community property states. Alaska is an opt-in community property state in which a couple can agree before their marriage for their property and debts to be treated as community property.Excluded from community property is property that was obtained before the marriage or property obtained through a personal gift or inheritance. If the bill is for an asset that was purchased before the marriage, the original owner is likely to be the only one liable for the debt unless the other spouse expressly agreed to pay the debt. Likewise, if the bill was incurred after the couple was separated, it is likely to be viewed by the court as separate debt.If the bill that was incurred is for an expense that arose during the marriage, such as a utility bill or a medical bill, the bill is likely subject to a 50/50 split between the spouses. This holds true even if the bills are primarily only in one of the spouse’s names.
Equitable Distribution States
When a family court in an equitable distribution state determines who is responsible for certain debt, it looks at the financial history of each spouse. In equitable distribution states, there may not be a completely equal distribution of property and debts.
Effect on Creditors
Even if a separation agreement or divorce decree states that a spouse is responsible for certain debts and the other spouse is not, this statement has no effect on the creditors because family courts do not have jurisdiction over third parties. Therefore, a creditor may still pursue collection efforts and take action against a spouse that can adversely affect his or her credit.
Even if a spouse would not be legally liable for a debt, he or she may become liable by an agreement. If the spouse told the creditor or the other spouse that he or she would pay a debt, that spouse may create a contract that both the spouse and the creditor can rely on.