| LIABILITIES FOR SPOUSE AND CHILDREN
The 1997 Legislature
made changes, including responsibility for a child
destroying a hotel room. Check the legislative changes
page.
Spousal Liability During Marriage
There is a common misconception
that there are "community
debts" or "community liabilities." The
general rule in Texas is that liability follows management.
This concept will be explored in more depth later in
this article. First, some general information on responsibility
for debts and liabilities for one's spouse and children.
Spouses can have direct and indirect legal responsibility
for debts or liabilities.
Direct responsibility occurs when a spouse signs an
instrument or contract obligating himself or herself.
A common example would be an application for credit.
Indirect liability is based on agency principles and
the doctrine of necessaries.
Under the Texas Family Code, a person is personally
liable for the acts of the person's spouse only if:
(1) the spouse acts as an agent for the person; or
(2) the spouse incurs a debt for necessaries. A spouse
does not act as an agent for the other spouse solely
because of the marriage relationship.
The doctrine of necessaries was a part of the common
law of the State of Texas, and is now set out in the
Texas Family Code as follows:
"Each spouse has the duty
to support the other spouse. Each parent has
the duty to support his or her child during the period
that the child is a minor, and thereafter as
long as the child is fully enrolled in an accredited
secondary school in a program leading toward a high
school diploma until the end of the school year in
which the child graduates. A spouse or a parent who
fails to discharge the duty of support is liable
to any person who provides necessaries to those to
whom support is owed.
"What is "necessary" varies
from case to case, and is dependent upon one's station
in life. At a minimum, necessaries include food,
clothing, shelter, and non-elective medical care.
As stated above, what property can be taken to satisfy
a debt depends on the management rights of that property.
With the exception of homestead property, each spouse
has the sole management, control, and disposition of:
1) his or her separate property; and 2) the community
property that he or she would have owned if single
(personal earnings; revenue from separate property;
recoveries from personal injuries; etc.). All other
community property is subject to the joint management,
control, and disposition of the husband and wife, unless
the spouses provide otherwise by power of attorney
in writing or other agreement.
Generally, the only property that is subject to seizure
for a spouse's liabilities is property over which that
spouse has some right of management or control. Torts
committed during marriage, however, are treated differently.
The rules of marital property liability are as follows:
- 1. A spouse's separate property is not subject
to the liabilities of the other spouse unless both
spouses are liable by other rules of law. Again,
an example would be when both spouses sign a contract
or loan application.
- Unless the incurring spouse is
acting as an agent or is incurring a debt for necessaries,
the community property subject to a spouse's sole
management, control, and disposition is not subject
to: a) any liabilities that the other spouse incurred
before marriage; or b) any nontortious liabilities
that the other spouse incurs during marriage.
- The
community property subject to a spouse's sole or
joint management, control, and disposition is subject
to the liabilities incurred by him or her before
or during the marriage.
- All community property is
subject to the tortious liability of either spouse
incurred during marriage.
These rules can be altered by premarital or postmarital
contracts, subject to the rights of existing creditors.
Additionally, a creditor may agree to only look to
a certain source for repayment of a debt - ie: a spouse's
separate property or a specific piece of property.
The ability to actually seize property to satisfy
a liability is limited by the Texas Constitution, the
Texas Property Code, and the Texas Insurance Code.
The Texas Constitution protects the homestead from
seizure for claims of creditors except for purchase
money; taxes on the property; properly executed liens
for home improvements; and owelty in a divorce situation.
It also prevents the garnishment of current wages except
for courtordered child support payments.
The Texas Property Code exempts certain personal property
from execution, in an amount not to exceed $15,000.00
for an individual and $30,000.00 for a family. A list
of items eligible for the exemption is listed in Section
42.002 of the Texas Property Code, and includes items
such as furniture, tools and items used in a trade
or profession, and one car. The Property Code also
establishes an exemption for retirement plans.
The Texas Insurance Code exempts all proceeds payable
under a life, health, or accident policy. The cash
surrender value of a life insurance policy is also
exempted if it has been in force for more than two
years, and a family member or dependent is a beneficiary.
Liability for Debts and Torts of Children
In general, persons under the age of 18 cannot make
contracts. The principal source of liability for
parents for the contracts of their children arises
from the general duty to support and the doctrine
of necessaries, both of which were discussed above.
A parent is also generally not liable for the torts
of a child simply based on the family relationship.
There must be some basis for personal liability. A
parent can be liable for acts of his or her own negligence,
resulting in the child's tort. Common examples would
be negligent entrustment of an automobile or firearm.
By statute, parents have some liability for the property
damage caused by the torts of their children. A parent
(or other person having the duty of control and reasonable
discipline of the child) is liable for any property
damage proximately caused by: 1) the negligent conduct
of the child if the conduct is reasonably attributable
to the negligent failure of the parent or other person
to exercise that duty; or 2) the wilful and malicious
conduct of a child who is between 12 and 18 years of
age. Recovery for damages caused by wilful and malicious
conduct is limited to actual damages, not to exceed
$15,000.00 per act, plus court costs and reasonable
attorney's fees. See the new law dealing with damages
to hotel rooms.
|
