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Debt incurred by spouse while legally seperated.

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fett76

Guest
What is the name of your state? AZ

I am posing this situation for my brother-in-law.

A week after my brother-in-law and his wife were legally seperated she has some surgery performed on credit. Last week (a few years later) my brother-in-law recieved a call from a collections agency attempting to collect on the debt. He responded that he and his wife were legally seperated at the time of the surgery (they've since divorced) and that they should contact her in this matter. He was told that because she's moved out of state it was easier for them to come after him. He replied that a condition of the divorce was that he would not be responsible for any debt she incurred while they were legally seperated. I've read the document and it definitely states that neither party is responsible for any debt incurred by the other during the time of the legal seperation. He faxed a copy of the divorce decree and the statement of legal seperation to the collections agency who reviewed it and told him that nothing in the documents exempted him from responsibility. From what I've found in my limited research, the collection agency is correct. Can anyone provide more verification of this (AZ is a community property state).

As a side issue, I am the owner and a resident of the house my brother-in-law lives in. Is there anything I, as an uninvolved homeowner, can do to get the collection agency to stop calling my home? They haven't been harassing us too badly but I can see where this might happen.

Thanks!
 


Ladynred

Senior Member
I'll have to do a bit of digging into AZ law, but I believe that if there was a legally binding separation agreement at the time the debt was incurred, then the 'community' does NOT apply and the debt is therefore the sole responsibility of the person who incurred the debt.

So, if that proves to be true, then the CA is going to have to go after the ex to get the money because the legal separation ended the 'community'.

On another note - how many years are we talking here since the debt was incurred ?? Did she use a credit card to pay ?

AZ has a very short SOL on cc debts - 3 years, so if she used a credit card and this was more than 3 years ago, then the debt is unenforceable and the AZ resident, at least, does NOT have to pay anything. If the EX moved to a state with a longer SOL, she could still be liable - depends on where she went.
 
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fett76

Guest
Thanks for the reply. I believe that they have been divorced for 3 years. I doubt that she payed with a credit card since I'm fairly certain they had no joint cards. I believe the ex is currently living Sout Carolina. Your preliminary opinion seems to match that of a lawyer friend of mine who gave his opinion after I posted this topic. Also, he said that AZ recently adopted a law based on a CA one that says even if their seperation was not a legal seperation he would not be responsible, provided that he was not party to the debt and they were later divorced.
 

Ladynred

Senior Member
I think this is the statute that would apply here:


"25-213. Separate property defined

A spouse's real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property, is the separate property of that spouse. Property that is acquired by a spouse after service of a petition for dissolution of marriage, legal separation or annulment is also the separate property of that spouse if the petition results in a decree of dissolution of marriage, legal separation or annulment. "

Where community property states are concerned, separate property also goes for 'separate debts'.

So, whether the SOL applies here or not, your BIL is NOT liable for the debt since they had a legal separation at the time she incurred the debt. He needs to write a letter to the collection agency and tell them he is not liable under AZ state laws of community property (ie. the legal separation) and for them to go pound sand. You want a Cease and Desist letter, send it certified.
 
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fett76

Guest
Thank you not only for the speed of your reply but also it's clarity. Just one question: Is the 25-213 an ARS (AZ Revised Statute) or from another source?
 

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