Budgeting Financial Planning Relationships & Money Divorce & Money What Happens to Debt When You Get Divorced? By LaToya Irby LaToya Irby Facebook Twitter LaToya Irby is a credit expert who has been covering credit and debt management for The Balance for more than a dozen years. She's been quoted in USA Today, The Chicago Tribune, and the Associated Press, and her work has been cited in several books. learn about our editorial policies Updated on January 6, 2023 Reviewed by Andy Smith Fact checked by Sarah Fisher Fact checked by Sarah Fisher Sarah Fisher is an associate editor at The Balance with two years of personal finance and business writing experience. She has written about personal finance for SmartAsset, and has held internships at the Consumer Financial Protection Bureau and Senator Kirsten Gillibrand's office. learn about our editorial policies In This Article View All In This Article Community Property vs. Equitable Distribution States Credit Card Debt Mortgage Auto Loan Student Loans Personal Loans Medical Debt Make a Plan To Pay Off Your Debt Divorce and Bankruptcy Frequently Asked Questions (FAQs) Photo: pixdeluxe / Getty Images In a divorce, if you and your spouse can't come to your own settlement agreement on how to divide any debts run up during the marriage, you may need to turn to the courts to help. Courts make decisions based on state law, when the debt was incurred, and whether there's a prenuptial agreement. In community property states, spouses typically have equal responsibility for debts taken on during the marriage, no matter which spouse incurred them. Community property is all property, including debt, that is acquired during the marriage. This property is owned equally by each spouse. Debts are likewise considered community debts in most cases. In non-community-property (also known as equitable distribution) states, marital debt—debt owned by both spouses—is divided based on many factors, including how much each spouse makes and why the debt was incurred. Key Takeaways Most debts incurred during a marriage will need to be divided during divorce proceedings.In equitable distribution states, the court tries to divide debts fairly, but that doesn’t always mean equally. In community property states, each spouse is liable for 50% of debt incurred during marriage by either spouse.Spouses can make the divorce process easier by paying off debts or negotiating an agreement before going to court.Creditors can hold the original account owner responsible for credit card or loan payments regardless of how debt is assigned in the divorce decree. Community Property vs. Equitable Distribution States One factor that determines how debts are divided in a divorce is whether you live in a community property state or an equitable distribution state. Community Property States Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In general, in community property states, marital debts and assets are divided equally. In some cases, the court may take other factors, like each spouse’s earning potential, into account when deciding how to divide property. Each spouse keeps their separate property. Note Separate property is property that is yours alone, not your spouse’s. In general, it’s property you came into the marriage with, or an inheritance or gift that only you receive during the marriage. Property can also be separated by a written agreement. Divorcing couples may be permitted to work out an alternative agreement on their own, or there may be a prenuptial agreement in place, which can help couples avoid many legal challenges. According to Leslie Tayne, founder and head attorney at Tayne Law Group, a valid prenup will dictate how assets and debts are divided. "In community property states, for example, a prenup can override the assumption that debts acquired during a marriage are shared debts," she said. Equitable Distribution States In equitable distribution states, the court aims to divide debts fairly based on several factors such as how much money and property each person has, how long the couple was married, who was responsible for the debt, the age and health of each spouse, and future earning potential. If one person ran up personal debts in their name during the marriage, generally, they’re considered the responsibility of that person unless both parties agreed to split the debt payments. But the court could still decide that, for instance, you’re responsible for your soon-to-be ex’s debts, even if you didn’t run them up. It depends on the circumstances. Credit Card Debt The way credit card debt is treated may depend on whose name is on the account. If the account is in only one spouse’s name, the debt may be considered differently from debts created on a joint account that has both of your names on it. Individually Held In community property states, both spouses are usually responsible for credit card debt created during the marriage, even when the credit card is in one spouse's name. However, the court may consider who used the card and whether both spouses benefitted from the credit card debt. In some situations, the debt may not be considered community debt. In other states, courts will take the credit card debt into consideration when determining what overall equitable property distribution looks like. They will also take into account which spouse took on the debt and what the money was for when dividing up debts and assets between the spouses. For instance, if a credit card in one person’s name was used for family groceries, that may be considered a shared marital debt. But if the card was only used for the cardholder’s personal purchases, that person may be solely responsible for the debt. Joint Credit Card Debt Jointly held credit card debt is assigned based on state law and the circumstances of the case. As with individually held debt, courts in community property states generally consider both parties equally liable for joint credit card debt. In equitable distribution states, that may be the case, but it depends on other factors as well, such as whether the money was used for the benefit of one or both spouses. For example, if a husband was using a joint credit card to rack up gambling debts, and his wife wasn’t using it at all, only the husband might be held liable for the debt. No matter what the courts decide, it’s important to know that the credit card issuer will continue to hold both people responsible for the debt, regardless of the divorce decree. That means you can face late fees or damaged credit if your former spouse doesn't pay court-ordered debt. Note If you're getting divorced, you still need to make sure your spouse is making the payments they owe on any joint debt. Otherwise, it could negatively impact your credit. Katie Ross, executive vice president for American Consumer Credit Counseling, recommends transferring the balance to new cards in each spouse's name. "Since these accounts won’t be joint, each person is only responsible for the transferred amount on their card. The joint card gets paid down by the transfers, and then is closed." Authorized User Accounts Credit card issuers don't hold authorized users responsible for payments, but the court may determine that both spouses are responsible for a portion of any credit card debt. Unless the court orders otherwise, you can remove your spouse as an authorized user by calling your credit card issuer. If you're the authorized user, you can also request to remove your name from the account to prevent any potential damage to your credit by your ex’s behavior with the card. Mortgage Dealing with mortgage debt can be tricky. You might need to figure out how to divide up any shared equity or decide who keeps the house. The way mortgage debt is distributed will depend on the state, whether both spouses are on the mortgage, and which spouse is awarded the home. Option 1: Home Buyout If you want to keep the home, you can buy your spouse’s share of the home equity, either in cash (as a lump sum or in monthly payments), or by trading marital assets—assets in which you both have a stake. If you are awarded the home and both of you are listed on the mortgage, you’ll need to make sure your ex is removed from it. One way to do this is by getting a release of liability from the lender, though many lenders won’t do this. They approved your mortgage based on the income and assets of both people, so removing one person may put the lender more at risk. The other option is to refinance the loan in your name only. The court may even order you to refinance. If the mortgage isn't refinanced by the deadline set by the court, you may be required to pay cash to your spouse or list the home for sale. The spouse who is not keeping the home will typically need to fill out a quitclaim deed, which effectively means they transfer their share of the property to the other spouse. Note Taking your spouse’s name off the property deed does not remove them from the mortgage. You will probably want to legally tie the execution of the quitclaim deed to the home refinancing process. Be careful about the way you pay your spouse for their share of the home, Tayne cautions. If you sell stock or withdraw from a retirement account early, for instance, it could raise your tax bill. If you can afford to, you may want to hire a certified divorce financial analyst or another financial professional who can help you avoid unnecessary taxes during divorce. Option 2: Sell the House A second option is selling the home, then dividing what's left after selling costs are covered and the mortgage is paid off. If there is still money owed after the sale, the court can help determine how to divide the rest of the debt. Auto Loan The court will most likely determine that the person who keeps the vehicle is responsible for the auto loan debt. However, the loan balance is still considered in the overall division of debts and assets if it was taken out during the marriage. Spouses who both signed the loan may agree to sell the vehicle and pay off the loan to get rid of the debt. If one spouse wants to keep the car, refinancing is also an option. You’ll also need to handle any necessary changes to your vehicle title. You’ll most likely be able to transfer your car title at a local division of motor vehicles (DMV) office, although that depends on where you live. Your state may require you to go to your county clerk’s office or you may need to change your vehicle title with your state's department of revenue. If you still have an auto loan balance and you’re keeping the car, contact your lender to request a temporary release to remove your spouse from the title. In some states, your spouse will also have to sign the title to change vehicle ownership. Student Loans Each spouse is typically responsible for their own debt on student loans taken out before the marriage. Depending on the state and the specific circumstances, student loan debt incurred before marriage may be taken into account when assets are divided. The process of determining ownership of student loans incurred during the marriage can vary by state. For instance, in California, a community property state, student loans are considered separate debts. However, if community money was used to pay down student loans for just one spouse, the court may order the other spouse to be reimbursed. To divide student loans that are marital debt, courts may consider how the loan was used and who benefits more from the education. For instance, if one spouse took out student loans to pay for their education and that education resulted in a higher income, the court may assign a larger portion of the student loan debt to that spouse. Important Student loans borrowed for an adult child's education may be considered marital debt, even if the loans are in one parent's name. Personal Loans Personal loans can either be separate debts or marital debts. In general, loans taken out before marriage are the responsibility of the person who took them out. In community property states, loans taken out during marriage and before separation are almost always a joint responsibility and are usually divided equally. There are some exceptions to that, though. For example, loans taken out during marriage may be considered one person’s responsibility if they took them out in secret or if the borrowing spouse signed a contract stating the debt is separate debt. In equitable distribution states, the debt can be just one person’s responsibility if it was only taken out in their name. But the court considers a variety of factors when deciding. If the debt is to be divided, courts consider the current and potential income of each spouse, the value of each spouse's separate assets, and who benefitted from the loan. Courts may also adjust the amount of debt allocated to each spouse to ease the burden of spousal support. Medical Debt Medical bills incurred during the marriage can be considered marital debt in community property states and in states that follow the “doctrine of necessaries.” This is an idea from common law that holds a person responsible for costs relating to the wellbeing of their spouse and their children. Couples can negotiate and divide medical bills in a way that works for them. Or, they can allow the courts to determine what's fair based on the other debts and assets. Make a Plan To Pay Off Your Debt Paying off debts before divorce gives you more control over the outcome. Courts can force spouses to sell assets, like their house, to pay off debts if they can’t come to an agreement. Fortunately, not everything is up for grabs. Separate property, which can include inheritances, gifts, and property you owned before the marriage, is usually off-limits. Start by listing all your debts (both individual and joint) and the amounts. Your credit reports can help you make a complete list. Next, decide what you can reasonably afford to pay off without putting yourself in a bind. "Divorcing spouses should not sacrifice their own financial security in order to pay off marital debts," says Tayne. "If you are uncertain as to how to pay off debt during a divorce, you should consult with your divorce attorney and potentially work out a solution in mediation." Creating a debt plan can be challenging. Ross suggests consumer credit counseling for spouses who are having trouble paying off debts. Credit counselors can help one or both spouses explore their debt options based on their income, assets, and goals. Divorce and Bankruptcy A former spouse's bankruptcy can affect you, even after the divorce is final. Creditors can pursue you for payment on joint debts or repossess property tied to the debt, even if the debt was assigned to your spouse during the divorce. Joint assets can also become part of the bankruptcy and, in some cases, sold to satisfy debts. Bankruptcy laws can vary, so it's important to understand the specific laws that apply in your case. Getting advice from a bankruptcy attorney can help you determine the best steps to take. Frequently Asked Questions (FAQs) What if my ex doesn’t pay debts they’re supposed to? If your ex-spouse doesn’t pay the debts they were supposed to, you can petition for enforcement with the court. The court can force your ex to pay what they owe. Your ex-spouse may have to pay additional compensation for damages, and may face fines or jail time. Who’s liable for debt after separation but before divorce? Not all states offer legal separation, and the rules for what happens after legal separation vary by state. Liability for debts incurred during separation may be determined by a separation agreement. If there is no agreement, both people may be responsible for debts that are necessary for the support and wellbeing of either spouse or the children of the marriage. Was this page helpful? Thanks for your feedback! Tell us why! Other Submit Sources The Balance uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. 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