Conjugal Liability

70 Pages Posted: 14 Aug 2016 Last revised: 5 Jul 2017

See all articles by Sarah Lynnda Swan

Sarah Lynnda Swan

Florida State University - College of Law

Date Written: July 1, 2017

Abstract

Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. This Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.

Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered: most often, it holds wives and girlfriends legally responsible for the wrongdoing of their husbands or boyfriends. Second, in many instances, conjugal liability is unmoored from traditional notions of culpability, and is arguably a concealed form of guilt by association. Third, conjugal liability flies in the face of the constitutional right to freedom of intimate association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and the underlying wrong, as opposed to merely a connection between the intimate partner and the wrongdoer.

Suggested Citation

Swan, Sarah Lynnda, Conjugal Liability (July 1, 2017). 64 UCLA Law Review 968 (2017). Available at SSRN: https://ssrn.com/abstract=2820145 or http://dx.doi.org/10.2139/ssrn.2820145

Sarah Lynnda Swan (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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