THE DOCTRINE OF NECESSARIES (DUTY OF SUPPORT TO SPOUSE AND MINORS)

By: Attorney Jeffrey W. Hanes The duty to provide for the support of a spouse or a minor child is well established by statute and by the common law. Inevitably, there arose a question of how to enforce it, particularly where the family who incurred an obligation had no income or control of assets. This problem gave rise to the common law Doctrine of Necessaries, which originally served to give a creditor recourse against a husband for debts incurred by his wife or minor children, if the debts were for the necessities of life. In 1986 along came the Marital Property Act, which looks at debts in terms of when and by whom they are incurred and whether they are incurred "in the interest of the marriage or the family", and regulates enforcement of debt obligations in terms of what property is available to satisfy the debt, rather than who is liable for it. Many people have assumed that the Marital Property Act took the place of the Doctrine of Necessaries, and that all debts of married couples must be analyzed under the Marital Property Act when there is a dispute as to how they are to be paid. The Doctrine of Necessaries, however, is alive and well. The traditional Doctrine of Necessaries provided that if a debt was incurred for one of the necessities of life by the wife during marriage, the husband was personally liable for the debt. The same was true for the husband with respect to debts incurred for necessities for a minor, regardless of the marital status of the parents or custody of the minor, at any time up to the age of majority. Wisconsin Courts have held, in effect, that the Doctrine of Necessaries is incorporated into the Marital Property Act, and modified only by the imposition of the doctrine upon both spouses equally. The importance of this holding becomes clear when creditors' remedies are analyzed. In the absence of the rule, if a spouse incurred a debt for necessary medical treatment, for example, none of the non-marital property of the other spouse would be available to satisfy the debt, and if the parties divorced, the liability of the non-incurring spouse would be limited to the value, as of the date of the divorce, of the marital property he or she received in the divorce. Under the Doctrine of Necessaries, all of the property of both spouses is available at any time, regardless of whether a divorce occurs. The Doctrine of Necessaries has important implications for minors as well. Ordinarily, a person under the age of 18 may not be bound by contract -- any contractual undertaking by a minor may generally be avoided by the minor at his or her option. When the contract is for necessary goods or services, however, it is enforceable against the parents, who are also jointly responsible for the obligation. The courts have never specified exactly what constitutes a "necessity". Clearly the term embraces medical care to the extent necessary for the health and well-being of the patient. It is also clear that the term would include debts incurred for food, shelter and transportation, to the extent reasonably necessary for the recipient of the benefit. A Wisconsin case decided in 1924 said that the financial situation of the husband and the social position of the family were factors to consider, and a 1906 case held that a set of "Stoddard's Lectures" was not a necessity. More recently decisions suggest that the doctrine may extend well beyond those goods and services necessary for basic survival, and a recent federal case held that a wife was liable for the cost of her husband's court-appointed attorney. The conclusion is a simple one: don't assume that the Marital Property Act provides you with protection against creditors of your spouse or child if the goods or services provided may reasonably be categorized as necessities, and remember that, in this day and age, the concept of necessity if likely to be interpreted a good deal more broadly than it was even a generation ago. Revised 1/2/03