Is a Spouse Responsible for Debt of Other Spouse

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Incurred before and During Marriage?


Ron Lieber, What Love Joins Togetehr, Debt Can Put Asunder. New York Times, Sept. 4, 2010 (title in the print).
http://www.nytimes.com/2010/09/04/your-money/04money.html
("But Ms. [Susan] Reach Winters[, a divorce lawyer,] said that if she were representing someone like Ms. Tidwell’s boyfriend in a divorce, she would argue that he deserved a sort of refund for everything he paid toward household expenses even if Ms. Tidwell were making the loan payments out of her salary alone. Whether a state’s laws back up this argument may be beside the point; any lawyer can use it as a battering ram in settlement negotiations.

(1) Excerpt in the window of the print: Something old, something new, something borrowed--oops.

(2) My comment:
(a) When I was reading this article, I wondered why prenuptial agreement was not mentioned. It turns out that a prenup is unnecessary. At least in Massachusetts.
(b) United States, following in the footsteps of England, subscribes to common law.

Common law (alos known as case law) is a judge-made law, handed down through ages and tried and true, because if a judge makes an erratic decision with poor rationale, other judges may elect not to follow. Further, appellate court are staffed by judges who rule in a panel, so an idiosyncratic judge can not prevail.

Lawmakers, through statutory law,  can supplant or overturn common law.
(c) Under common law, a wife owns no property (personal or real). She can not contract, sue or be sued. Only a husband can (own, contract, sue or be sued). After marriage, a husband takes over debt or judgment against her incurred prior to the marriage.

(d) Massachusetts legislature changed those starting more than 100 years ago.

Kindregan CR, Inker ML and Kindregren PA, Family Law and Practice. 1 Massachusetts Practice, section 8:17 (section heading: Statutes Governing Business and Property Relationships of Husband and Wife) (2003)

states:

"M.G.L.A. c. 209, section 1 eliminates the former common law right of the husband to control his wife's property and provides that the property of the husband and wife shall 'remain the separate property of each person.'

"M.G.L.A. c. 209, section 7 provides that a married woman is not liable for her husband's debt * * * The common law liability of a husband for his wife's premarital debts or for judgments against her was abolished by M.G.L.A. c. 209, section 8.

(e) M.G.L.A. Stands for Massachusetts General Law Annotated. General Law is the official name of Massachusetts statutes.

The text of Massachusetts General Law can be found in the state government's web site
www.mass.gov/legis/laws/mgl

(f) M.G.L.A. c. 209, section 1 in pertinent part provides, "The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if such person were sole."

The text does not allude to debt. So case law explains what it (statute) means. There were two cases:
(i) Caldwell v. Blanchard, 191 Mass. 489, 77 N.E. 1036 (1906)
(A married woman buys furniture on her own credit and has it delivered to matrimonial residence; she binds herself personally to pay for it)

(ii) Spaulding v. Day, 92 Mass. 96, 10 Allen 96 (1865)
(A married woman purchases seven cords of wood, although in making the conveyance there is no express statement, in writing or otherwise, that it is to be held as her separate property)

(g) M.G.L.A. c. 209, section 7 provides in toto, "A married woman shall not be liable for her husband’s debts, nor shall her property be liable to be taken on an execution against him. But a married woman shall be liable jointly with her husband for debts due, to the amount of one hundred dollars in each case, for necessaries furnished with her knowledge or consent to herself or her family, if she has property to the amount of two thousand dollars or more.

(h) M.G.L.A. c. 209, section 8 provides in toto, "A husband shall not be liable upon a cause of action which originated against his wife prior to their marriage, or to pay a judgment recovered against her.

The exception: "But since the st. of 1871, c. 312, a husband can not be held liable for a tort of this kind committed by his wife, unless he aided, abetted, advised or otherwise encouraged the act."
Austin v. Cox, 118 Mass. 58 (1875).

The statute of 1871, c. 312 was the predecessor of what is now M.G.L.A. c. 209, section 8.

(i) I have an acquaintance, a woman who came from Arkansas, works in Boston but will return in a month or two to Arkansas for a wedding ceremony. She volunteered yesterday, when I inquired about this NYT article, that she had recently consulted a financial planner about this issue: debt that a spouse brings into the marrige. The planner says each is responsible for his or her debt incurred prior to the marriage.


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