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Community Liability For Separate Debts in Arizona | Voted “Best of the Valley”

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

Community Liability for Separate Debts in Arizona

Rules Regarding Community Liability for Separate Debts

Community Liability for Separate Debts.

Community Liability for Separate Debts.

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 the 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.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

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 the 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.

Liability for a Spouse's Separate Debt.

Liability for a Spouse’s Separate Debt.

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 the 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.

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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I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
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21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
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