Assuming a Debt in Divorce
By Heather Frances J.D.
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Though many couples focus their efforts in a divorce on who gets a greater share of the property, the way your debts are divided may be even more important. Your debts don't disappear when you divorce, so the court must split those debts fairly or evenly between you and your spouse, depending on state law.
Division of Debts
Marital debts are divided in divorce just as assets are. If you live in a community property state – Arizona, California, Louisiana, New Mexico, Nevada, Idaho, Texas, Washington or Wisconsin – assets and debts you acquire during your marriage belong equally to both spouses, except in certain narrow circumstances, such as assets acquired by inheritance or gift that you kept separate from your marital assets. Other states, called equitable distribution states, also distribute the assets and debts acquired during the marriage between the spouses -- these states are not necessarily bound by a 50-50 split, although a fairly even split is often the outcome. Courts in these states can deviate from an even split in the interests of fairness, according to criteria that vary among states.
Even when your debt is divided between you and your ex during a divorce, you must take steps to actually assume the debt. There are many ways to transfer debt between spouses or to take one spouse’s name off the debt, but the available methods depend on the type of debt. For example, your credit card company may simply remove your ex-spouse’s name from the account, or you may have to open a new card and roll the debt from the old account to the new one. If your mortgage is in both names, the spouse assuming the mortgage typically must refinance it to remove the other spouse’s name.
Enforcing the Decree
As long as your name is on a debt, you remain liable to pay it even if your divorce decree says otherwise. Creditors are not bound by the terms of your divorce decree, so they can hold you responsible to pay a joint debt even if your divorce decree says your ex-spouse must assume responsibility for it. However, you can enforce the terms of your divorce decree by asking the court to hold your ex-spouse in contempt if he refuses to pay a joint debt as ordered by the court.
If you are concerned about your spouse refusing to pay a debt, you can ask the court to include a “hold harmless” or “indemnification” clause in your divorce decree. Such clauses state that your ex must repay you if he doesn’t pay a debt as required and a creditor comes after you instead. For example, if your ex files for bankruptcy after your divorce, creditors on joint debts can come after you instead. If this happens and you have an indemnity clause in your decree, you can sue your spouse to enforce the clause, thereby increasing your chances of getting repaid, perhaps getting your reimbursement from assets that were exempt from your ex-spouse's bankruptcy proceeding.
- Pullman & Comley LLC: Divorced – And Then Bankrupt
- Allmand Law: Protecting Yourself Post-Divorce: Bankruptcy a Possible Solution?
- Collins & Collins, P.C.: Community Property & Debt
- Lisa Marie Vari & Associates, P.C.: Pittsburgh Equitable Distribution Lawyers
- Bankrate: Community Property, Common Law, Assets and Debts
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.