Florida is an “equitable distribution” state, which means a couple’s marital assets and debts are divided equitably in a divorce. However, an equitable distribution does not necessarily mean an equal distribution. Florida does not consider certain debts to be marital debts divisible by the court and creditors are not bound by the terms of a divorce decree.
In Florida, two categories of debts are not subject to division by the court in a divorce: premarital and non-marital. Premarital debts are those a spouse incurred before the marriage, including debts on a credit card in one spouse’s name. If the other spouse never used the cards, a Florida court considers these debts the responsibility of the spouse in whose name the card was issued. So, the spouse who had the cards prior to the marriage must continue to pay those cards after the divorce.
Florida also recognizes some assets and debts as non-marital and outside the court’s power to divide. Debts acquired during the marriage that are listed only in one spouse’s name, used as separate property and not paid with marital funds may be considered non-marital. Generally, if one spouse takes out a credit card but none of the charges on it have contributed to the marriage, it might be considered that spouse’s separate debt. For example, if one spouse opens a credit card during the marriage but uses it only for business expenses, debts on that card may be considered non-marital.
Credit cards opened in both spouses’ names or that were used to purchase items for the family are considered marital debt, divisible in a divorce. Even if a card is not in both names, the card will likely be considered marital debt if both spouses have charged on it during the marriage. Marital debts and assets are divided equitably if the spouses cannot agree on a division. Florida courts begin a division with the presumption that marital assets and debts should be split 50/50, but the judge can change this distribution after considering factors such as the duration of the marriage and the contributions to the marriage by each spouse.
Creditors are not bound by the terms of a divorce decree or marital settlement agreement, so spouses remain liable for any debts in their names. Even if a decree says one spouse is liable for all the couple’s credit cards, creditors can still go after the other spouse for payment if the paying spouse defaults on the debt. However, if the paying spouse attempts to file bankruptcy to escape from these credit card debts, recent changes to the bankruptcy code might prevent him from discharging these debts, so that he will remain liable for them.