Am I Liable for a Spouse's Debt Prior to a Divorce During Separation?

By Travis Gray, J.D.

Am I Liable for a Spouse's Debt Prior to a Divorce During Separation?

By Travis Gray, J.D.

It can be hard to pinpoint the exact moment a marriage breaks down. While a divorce comes with a formal end date, the status of the relationship can remain murky from the point the couple decides to split until the day the divorce is finalized. These complications are more than just emotional in nature; determining which spouse is responsible for debts incurred during a separation can also be complicated.

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Evaluating Your Marital Debt

Not all debts held by married couples are treated the same. For instance, debt that was incurred before a marriage would be the responsibility of the indebted spouse after the marriage ends. But if the debt was incurred during the marriage, the spouse responsible for that debt upon separation or divorce can vary.

When your divorce is finalized, the court will make a final determination on which spouse will be responsible for each marital debt. The court will have a great deal of leeway in assigning debts during your divorce, so it's important to put forth the best case possible. While your final divorce decree may clear up lingering questions about the status of your marital debt, the same cannot be said for debt incurred during the separation.

When Liability Stops

The cutoff point for when debts no long qualify as marital debt varies greatly depending on state law. Some states, including Michigan, consider any debt occurred up until the date of your divorce as a marital debt. This is true even if you are separated from your spouse and had no knowledge of the debt until after it had been incurred.

Other states are different. For example, under California law, your creditors will make the distinction between before and after you separate from your spouse. The date of separation can be as informal as the date that you or your spouse moves into a different household. Other states consider all debt incurred from the moment the divorce petition is filed as individual debt. The important thing to understand is that once you reach the cutoff point in your state, you are no longer responsible for any debt incurred by your spouse.

There are some exceptions in states that consider debts during separation as individual debts. In these cases, the court can designate debts incurred for necessities—food, shelter, transportation, or medical bills—to the other spouse if they are in a better position to pay. Expenditures on luxury items will not qualify.

Creditor Issues

While your divorce decree may assign debt to one spouse or another, this designation does not apply to all of your creditors. If you signed a contract obligating you on a debt, your creditor will be able to pursue you even if the court ordered your spouse to take care of it. That is because a divorce decree can not override your contractual obligations. However, if your spouse fails to pay the debt they are required to under the divorce decree, they may be held in contempt by the judge in your divorce case. In some states, creditors will still be able to reach your assets in joint accounts even after separation.

While the accumulation of debts during separation can be frustrating, it is critical that you follow the rules set out by the judge in your case.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.