Who is responsible for debt when you get a divorce or if you break up?
For the jurisdiction where I practice law (Utah), the law governing who can be made responsible for the payment of marital debts in divorce is very different from the law governing responsibility for debts incurred during the period of time a couple lives together without being married.
DIVORCE
Debts you and your spouse incurred jointly. The presumption in divorce is that responsibility for debts incurred jointly during the marriage (i.e., in the names of both the husband and the wife) be divided equally between the both spouses. But this presumption can be rebutted if it could be proven that there is a compelling equitable reason for an unequal division of responsibility for marital debts, such as one spouse having a significantly higher income than the other or if you can show that your spouse benefited from incurring the debt far more than you did.
But what about debts that you incurred during the marriage in your name only? Such as credit card debt for expenses you incurred for the benefit of the family? The presumption is that debts that incurred during the marriage in your name only will be your sole responsibility unless you can prove that the expenses you incurred in your name only were “family expenses,” meaning expenses that were not incurred for you sole or primary benefit, but for the benefit of both spouses or for the benefit of the parents and children or for the benefit of the children. In other words, just because the credit card or the loan or the invoice is in your name only, that doesn’t mean you should necessarily be the only one responsible for paying such a debt if the debt was for your son Jimmy’s braces, for your daughter’s wedding, or for a trip for two to Hawaii.
BREAKUP OF COHABITING UNMARRIED COUPLES
First, you need to understand the difference between mere roommates and a couple who lives together like a married couple but for the fact they are unmarried.[1]
There is both a quick, but oversimplified explanation for how the law works and a more complex explanation when dealing with division of responsibility for debts when an unmarried cohabiting couple breaks up.
The quick and oversimplified explanation: an unmarried couple that decides to live together clearly do not enjoy the same legal rights that married couples do. If a man and woman (or two gay men or two lesbians for that matter) decide they want to live together and have sexual intercourse with each other, but don’t want to be married, they certainly can do that, but one of the differences between married couples and near cohabiting couples is that one of the two members of the cohabiting couple cannot obligate the other for debts that one of them incurs. Because there is no family, one of the members of the couple cannot incur expenses as a “family expense” and thus make the other member of the couple liable for those debts or expenses. Simply (but not completely accurately) stated, cohabiting couples cannot obligate each other to debts and expenses without each other’s knowledge and consent.
The more complex explanation: You may have heard of concepts such as “palimony”; that doesn’t exist in Utah. But there are other equitable concepts that can be used to recover money from people (cohabiting or otherwise) who claim the lack of a formal contract as a means of taking advantage of others. Here are just a few:
Unjust enrichment. To establish under a claim for unjust enrichment, you must prove: 1) you conferred a benefit on your cohabitant; 2) an appreciation or knowledge of the benefit by your cohabitant; and 3) your cohabitant’s acceptance or retention of the benefit under such circumstances as to make it inequitable for your cohabitant to retain the benefit without payment of its value.
Quantum meruit (quasi- contract or a contract implied in law). To recover under quantum meruit, you must prove that your cohabitant received a benefit from you, had an appreciation or knowledge of the benefit, and accepted the benefit under circumstances that would make it unjust for him/her to retain it without compensating you.
Constructive trust. Courts recognize a constructive trust as a matter of equity where there has been (1) a wrongful act, (2) unjust enrichment, and (3) specific property that can be traced to the wrongful behavior. Such trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.
COMMON LAW MARRIAGE
Now remember, I am writing about what the law is in the jurisdiction where I practice divorce and family law (Utah). Utah recognizes common law marriage. Most states do not.
There are two different kinds of marriage in Utah: solemnized marriages and common-law marriages. A “solemnized marriage” is a marriage that involves the performance of a ceremony by someone authorized by the government to perform marriage ceremonies. A common law marriage is created in Utah if a couple has not entered into a solemnized marriage but who have instead entered into a contract and who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
So one way to get your cohabitant to be responsible for debts that you incurred in your name only, but for the benefit of you and your cohabitant and/or you and your cohabitants children during the period of time you were cohabiting together, would be if you could prove that you and your cohabitant were common law spouses. The problem is that most people who are cohabiting are doing so expressly for the purpose of not being married. They want to live together have sex together even have children together and essentially act like a married couple without having incurred the obligations of marriage. When that is the case, common law marriage cannot exist. There are a lot of people who have cohabited for years or even decades and then split up and are then shocked to discover that they do not enjoy the same rights as they would had they been married and were then seeking a divorce. Many of these people then tried to revise history to claim that their cohabitation relationship was in fact a common-law marriage. Consequently, the claims of unmarried people who claim to be common-law spouses for the purpose of obtaining financial benefits are met with skepticism, and proving common-law marriage is extraordinarily difficult to do.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] *Two or more guys or gals who live together as roommates in the same apartment to save money while they go to college, who aren’t engaged in a romantic relationship, who aren’t having sexual intercourse with one another—they are clearly not married and they are clearly not “shacking up”. Each roommate is on his/her own for his/her own debts. If one of them generously chooses to purchase groceries for everyone in the apartment without compensation, that’s a gift. The generous roommate cannot complain about all the money he or she is “owed” when he or she decides to move out. Roommates cannot very easily obligate one another to share expenses unless they agree to do so in advance.