In Good Times and in Debt: The Evolution of Marital Agency and the Meaning of Marriage

Abstract

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable - the debtor directly and the spouse indirectly by imputed liability. Before married women's property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse's imputed liability for the debts of the other spouse. Today, the scope of a spouse's imputed liability for the debts of an insolvent spouse defines an important and largely unexamined aspect of what it means to be married. Despite change in the terms of marriage between the parties, courts continue to view imputed marital liability with sensitivity to the historical privilege of marital investment and the unique social value of trust and dependency within marriage.