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Community Liability For Separate Debts

Posted on : February 2, 2016, By:  Christopher Hildebrand
Community Liability for Separate Debt in Arizona

Can Community Property May Be Liable for a Spouse’s Separate Debt in Arizona from Chris Hildebrand on Vimeo.


Community Liability for Separate Debts

Our Scottsdale Arizona Community Property Attorney, Chris Hildebrand, Discusses Whether Community Property May be Liable to Pay the Separate Debt of Spouse in Arizona.

Under Arizona law, a couple’s community property, that earned or acquired during the marriage, cannot be used to satisfy a debt that is the sole and separate debt of one of the spouse’s. The law also specifies that if a spouse owed money before the marriage, the other spouse’s separate property cannot be taken to pay for it after the marriage.

In the case of Forsythe v. Paschal 34 Ariz. 380, 271 P. 865 (Ariz. 1928), the Arizona Supreme Court discussed whether marital property can be used to pay for the separate debts of one spouse from before the marriage. Gail M. Grant married F.C. Paschal in 1924. While Gail was single, she became indebted to B.L. Forsythe in the amount of $1,400. She signed legal documents promising to repay the $1,400. These took the form of three promissory notes.

Although Gail signed the promissory notes during the marriage, F.C. did not sign them. However, when she did not make the payments required by the notes, Forsythe sued both Gail and her husband. Gail did not defend against the action, but F.C. did, saying that the $1,400 was Gail’s separate debt, not a marital debt. The court agreed, ruling in favor of F.C., and this appeal followed.

Expressio Unis Maxim

The focus of the Arizona Supreme Court was on how the relevant Arizona law should be interpreted. The law provides that “[t]he separate property of the husband or wife shall not be liable for the debts of the other contracted before marriage.” Paschal pointed out that this law specifically talks about separate property of a spouse not being liable for separate debts before marriage, but does not say that the couple’s community property cannot be held liable.

He argued that the Court should use the legal maxim “expressio unius est exclusio alterius” when interpreting that law. That maxim (written in Latin) means that when the legislature specifies one thing very clearly, a court must assume that all other things are excluded. Here, the legislature specified that a spouse’s separate property could not be used to satisfy the other’s premarital debt, but it did not mention whether community property could be used. Under the maxim, Paschal argued, the Court must read the law as allowing community property to be used to satisfy the pre-marriage debts of a spouse. The Court declined to use of this maxim in the way Paschal requested. It noted that another Arizona law provides that “[t]he community property of the husband and wife shall be liable for the community debts contracted by the husband during marriage, except in such cases as are specially excepted by law.”

Were the “expression unius” maxim used to interpret this statute, the Court noted, the specific statement that community property is liable for community debts contracted by the husband during marriage would mean that community property could not be liable for any other debts. This result would be directly contrary to the result obtained by applying the applicable law.

Statutory Interpretation Must Consider Public Policy

Since the application of the maxim would result in contradictory results, the Court chose to interpret the law so that it reflected the meaning of marriage under Arizona laws. It cited many cases for the proposition that Arizona’s principal aim in regulating marriage is to protect the family as a unit. The Court noted that few things would more rapidly destroy “the solidarity of family life and the proper maintenance of the children of the marriage” than allowing the community estate intended for this protection to be used to satisfy debts that are not connected with the family. Since the destruction of the solidarity of the family is against public policy in Arizona, the Court ruled that – unless the legislature makes a clear law allowing it — a creditor of one spouse may not enforce a judgment for an individual debt against the property of the community.


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