The Common Law Doctrine of Necessaries

It is very important that separated spouses read and understand this post.  Failure to notify, in writing, a healthcare provider that you are separated could leave you on the hook for the other spouse's medical bills.

Why would I be on the hook for my spouse's medical expenses if we're separated?

Short answer is that the law allows for it since you are still married and medical care providers are going to get the money they are owed one way or another.  Although North Carolina requires a year long separation period prior to a couple obtaining a divorce, a couple is still married while separated.  Since you are still married but separated you can be responsible for your spouse's medical costs.

The doctrine of necessaries goes all the way back to jolly old England and is a holdover from English common law.  The reason behind the doctrine is that marriage is an institution that creates a duty for each spouse to take care of each other by supporting and providing for one another.  The doctrine technically applies to each spouse providing food, shelter, medical care, etc. to the other spouse.  Nowadays, medical care expenses are usually all to which the doctrine is focused.

Is there anything I can do to keep the Doctrine of Necessaries from applying to me?

Yes, there are a couple things that can be done.  First, don't get married.  I don't mean that as a joke or to be sarcastic.  If a couple is getting up there in age they may determine that marriage is not going to be beneficial for them because of the doctrine of necessaries.  With age comes doctor's visits and, unfortunately, hospital stays.  Married couples are responsible for each other's medical bills so if you don't get married, then the doctrine of necessaries does not apply to you.

Second, if you are separated you can prevent the doctrine of necessaries from being applicable.  You can do this by providing your spouse's medical care provider with a written separation agreement prior to any medical treatment.

One other option exists and it's moving to another state that does not have the doctrine of necessaries.  Now, you have to establish residency, but you can do that over time and by physically residing in the other state.

Can I circumvent the Doctrine of Necessaries by signing a pre-nuptial agreement?

If only it was that easy.  Unfortunately, the doctrine of necessaries will survive any pre-nuptial agreement.  The reason is that the doctrine pertains to rights that a medical care provider has and a third party cannot waive those rights.

Keep this blog in mind if you are separated with your spouse.  You will want language in your separation agreement that specifically pertains to the doctrine of necessaries.  I would advise contacting an experienced family law attorney to draft your separation agreement.  Too many things can go wrong if you try to do it yourself.

Until next time.

*Nothing in this blog post should be construed as establishing an attorney-client relationship and it should not be considered offering legal advice.