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Community Liability Separate Debt in AZ | Hildebrand Law, PC

Posted on : February 2, 2016, By:  Chris Hildebrand
Separate Debt in Arizona Divorce.

Community Liability for Separate Debts in Arizona

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Under Arizona law, a couple’s community property, which was earned or acquired during the marriage, cannot be used to satisfy a debt that is the sole and separate debt of one of the spouses. 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 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 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.

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 this maxim in the way Paschal requested.

Liability for a Spouse's Separate Debt.

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.

If you need information about community liability for separate debts in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce attorneys have over 100 years of combined experience successfully representing clients in divorce cases in Arizona.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce case around today.

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Chris Hildebrand wrote the information on this page about community liability for a spouse’s separate debts in Arizona to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.



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