Debts and Obligations

Question 1

Debts Before Marriage

Answer 1

All the community property, and the debtor’s separate property, are liable for a debt incurred by the debtor spouse before marriage, but the separate property of a non-debtor spouse is never liable. Prior marriage spousal support and child support payments, if paid from community property, must be reimbursed to the community on divorce.

Question 2

Debts During Marriage

Answer 2

All the community property, and the debtor’s separate property, are liable for a debt incurred by the debtor spouse during marriage. The separate property of a non-debtor spouse is only liable if the debt is contractual and is for “necessaries” such as living expenses (food, shelter, medicines, and the like).

Question 3

Order of Satisfaction

Answer 3

If a tort that gives rise to the debt is for the benefit of the community, then the debt will first be satisfied from the community property, then, if necessary (that is, if the community property is not enough to pay off the debt), from the debtor spouse’s separate property, and finally, if the debt is still not completely satisfied and is for necessaries, from the non-debtor spouse’s separate property.

However, if the tort is not for the benefit of the community, then the debt will first be satisfied from the debtor spouse’s separate property, and then, if necessary, from the community property.

Question 4

Debts Analysis

Answer 4

Thus, the question of debts and obligations should be analyzed as a five-step process:

(1) what type of debt is it (contract—necessaries or otherwise, or tort)?
(2) when was the debt incurred (before marriage or during marriage)?
(3) based on the time it was incurred and the type of debt, whose separate property could be liable in addition to the community property?
(4) was the debt a tort that was incurred for the benefit of the community? and
(5) based on whether it was incurred for the benefit of the community, in what order is the tort debt satisfied?