In Maricopa County Justice Courts, over 5000 cases per month are being filed in an attempt to collect consumer debts. However, these judgments may be unenforceable on a married couple’s community property if the debt collectors do not include both spouses on the lawsuit and subsequent judgment. 

A.R.S. sec. 25-215(D) requires that to hold a community liable, both spouses must be named and served in the lawsuit. A creditor must join both spouses as defendants before the creditor may obtain and execute upon a judgment against the marital community, even where the judgment is for a separate premarital debt of one of the spouses. Heinig v. Hudman, 177 Ariz. 66, 865 P.2d 110 (App. 1993); Flexmaster Aluminum Awning Co. v. Hirschberg, 173 Ariz. 83, 839 P.2d 1128 (App. 1992). The other spouse’s interest in the community property includes a due process right to litigate the premarital debt and the value of the debtor spouse’s contribution to the marital community. Id.  However, in their rush to judgment, debt collectors often fail to include both spouses on the judgements they obtain. 

In Arizona, all property acquired by either husband or wife during the marriage is community property of the spouses. Therefore, even the wages earned by one spouse are the community’s wages. Therefore, if the debt collector failed to name both husband and wife on the judgment, they are not able to garnish the named spouse’s wages, or levy their bank accounts. 

Furthermore, a judgment obtained against a spouse who was not served and whose liability was not determined is a due process violation, and a spouse cannot be added as a defendant and judgment debtor to the judgment after it has been obtained. See Spudnuts, Inc. v. Lane, 139 Ariz. 35, 676 P.2d 669 (Ct. App. 1984). Meaning the debt collector cannot go back and fix their mistake. 

Thus, if the debt collector obtains a judgment against only one spouse when both are residing in Arizona at the time of the suit, they may have a worthless piece of paper. 

David McGlothlin Community Property   by David McGlothlin