By Richard A. Marcus, Esq.


You are married and your marriage isn’t doing too great. You start wondering whether you are going to be responsible for your spouse’s debts if you decide to split up. The general rule is that the community estate, meaning both spouses, is liable for a debt incurred by either spouse before or during the marriage and prior to separation. The rule applies whether or not you are a party to the debt. This means that generally, even if a judgment is in your spouse’s name, you are still liable even though your name wasn’t even on the contract and you were not a party to the transaction.Let’s say that your spouse incurs a debt just for himself or herself which doesn’t technically benefit “the community.” Like in my wife’s case, buying a Louis Vitton bag. Well, you are still responsible for paying, although if you are innocent, you may have a claim of reimbursement against your spouse.

So what about support obligations from a prior marriage? Unfortunately, there is more bad news. The community estate may be reached for these debts too, even if you are not personally responsible for the satisfaction of the debt and do not consent to having it paid with community funds. The courts can however order reimbursement in some circumstances in dissolution proceedings. Some good news is that the non-debtor spouse's "earnings" during marriage are not liable for debts incurred by the other spouse before marriage, but community property may be. In order to shield those earnings that have been paid, they must be held in a "deposit account" in which the debtor spouse has no right of withdrawal, and not commingled with other community estate property, "except property insignificant in amount."

So what about liability for death or injury caused by the other spouse? Just because you are married does not make you vicariously liable for your spouse’s tortious acts or omissions. But you may be held liable for injury or damage under any principle of law by which liability could be imputed if the marriage did not exist. For example, permissive use of an automobile which results in injury.

If liability for the debt arises out of an event of your spouse for the benefit of community, it must be satisfied first from the community estate. The spouse causing the actual injuries separate property is secondarily liable only to the extent the community estate is insufficient. And, if the spouse causing the injury was not "performing an activity for the benefit of the community," it must be satisfied first out of that spouse’s separate property. In such an event, the community estate is secondarily liable only to the extent the separate property is insufficient. So for example, if your spouse defames someone and it is not for the benefit of the community, his or her separate property will first be used to pay any resulting judgment.