Texas is a community property state, which means that property is either considered community property or separate property. Separate property is any property owned or claimed before marriage. Separate property also includes property inherited or received as a gift during marriage. Finally, separate property also includes any recovery for personal injuries sustained during marriage, excluding recovery for loss of earning capacity. Community property is any property acquired during marriage that is not separate property. Within community property, there are two additional categories known as sole management community property and joint management community property. A person's earnings, revenue from separate property and recoveries for personal injuries are that person's sole management community property. Also any increase in value or revenue from a person's sole management community property is also that person's sole management community property. All other types of community property are considered joint management community property.
All these definitions of property matter when dealing with your spouse's creditors. The type of property and the type of liability determines what assets creditors can go after to pay off a debt. For the purposes of this article, there are two types of liabilities: tortious and non-tortious. The most common examples of a tortious liability include: a judgment against you for a car accident, a judgment against you for wrongful death or injury, a judgment against you for slander, or a judgment against you for professional malpractice. The most common examples of non-tortious liabilities are unpaid bills and money owed under a contract, like a lease or loan.
If your spouse's liability is non-tortious, then your spouse's creditor can only go after assets that are joint management community property, your spouse's sole management community property and your spouse's separate property. If your spouse's liability is tortious but incurred before marriage, then your spouse's creditor can go after assets that are joint management community property, your spouse's sole management community property and your spouse's separate property. However, if your spouse's liability is tortious and incurred while you're married, then your spouse's creditor can go after any community property and your spouse's separate property. Your spouse's creditors can never go after your separate property, regardless of whether the liability is tortious or non-tortious.
There are two situations when your spouse's debts are also considered yours. The first situation is when your spouse incurs a debt while acting as your agent. In that situation, your spouse is legally acting as your representative. However, simply being married doesn't make your spouse your agent. Your spouse acts as your agent, for example, if your spouse signs a mortgage agreement on your behalf with your authorization. The second situation is when your spouse incurs a debt for "necessaries." The Texas Family Code doesn't define what are "necessaries," but courts have held "necessaries" to include clothing, food, medical care, shelter and legal fees. If either of these situations applies, then the creditor can go after all your spouse's assets and all your assets, including your separate property.
Finally, remember that in Texas, most creditors cannot go after certain assets no matter what. The most common of these exempt assets include your homestead, annuities, retirement plans, college savings plans, life insurance and up to $60,000.00 of certain personal property.