By Earl N Jackson
Texas Board of Legal Specialization
Community Debt, Marital Debt – Mortgage(s), Credit Cards, and Automobiles . . .
I have been over this time and again with some pretty strong counsel – there is no such thing as “community debt.” You can find this phrase in lots of appellate opinions. Some very very fine lawyers still use it. People that should know better – frankly. It all came out of a case from many years ago entitled Cockerham. In March of 2013, the Supreme Court overruled, or at least you might say, clarified Cockerham because it led to confusion.
Note: debt is not property it is an obligation. There are cases which refer to community debt in the sense that the creditor looked to the credit of the community estate prior to issuing the credit card. One case said this was “assumed.” Well, that Court is wrong. Many times one spouse will receive a credit card offer, sign the little card and will obtain the credit card in about 3 weeks. That spouse is liable for the debt on that card. The innocent spouse did not charge or sign for the card. But there is another way of looking at it, if the spouse that received the credit card is purchasing “necessaries” (groceries, utility bills, etc.) on the credit card, then both spouses are liable for that debt.
Look at that those phrases – “necessaries” and “debt.” Necessaries are food, medical, housing, maybe automobile expense – things you have to have in order to life. If debt is incurred for necessaries then both spouses are liable for that debt. This arises out of the duty to support a spouse.
Separate Property Liability: A married person’s separate property is not subject to the liabilities of his or her spouse unless both spouses are liable by other rules of law. However, a spouse’s separate property is liable if the spouse incurs a debt for necessaries or if the spouse acts as an agent for the married person. Agency is not created simply because the parties are married.
Sole Management Community Property Liability: Each spouse’s share of joint management community property is subject to liabilities incurred by him or her before and during marriage. A spouse’s separate and sole management community property cannot be reached to satisfy the obligation incurred by the other spouse unless that obligation was incurred for necessaries or by the torturous conduct of the other spouse.
Joint Management Community Property: Each spouse’s share of joint management community property is subject to liabilities incurred by him/her before and during the marriage.
Character of Contractual Obligation: The character of debt is fixed by the character of the contractual obligation with the creditor. When either spouse incurs an indebtedness during marriage and the person extending credit does not specifically agree to look solely to the separate estate of one of the spouses for satisfaction, the borrowing spouse pledges community credit and whatever is acquired as a result is community property.
The parties have a joint BOA MasterCard. They both use it. They both charge on it. Obviously, a joint debt.
One party has a Chase MasterCard and the other does not. The one party that does not have the Chase MC never charges on that card. That is not a debt of that party although one appellate court may disagree.
One party applies for credit cards all the time, never tells the other party. That party has 20 of them and has charged up all manner of items. That debt is the debt of the party that incurred the debt.
The party that has all manner of credit cards, was borrowing money on all of them to purchase — groceries, gasoline, clothing and medical services. Those charges are necessaries and both parties are liable for it. What do you do in this situation? The party that paid for the necessaries may obtain a judgment for the debt against the other party or indemnification.