Dividing Debt During Divorce
During a marriage, most couples typically have at least some level of joint debt. This may be a home mortgage, a car loan, or a joint credit card. Although it is generally preferable to pay off joint debt prior to divorce, this is often not a realistic option and the debt will need to be apportioned between the spouses. If you are able to pay off the debt, it may be advisable to then cancel joint credit cards to prevent additional debt from being incurred.
During a divorce, if the couple can’t agree on how to divide debt, the court will do so in the same way it divides assets; first it will determine whether the debt is marital or nonmarital and, if it is marital, will divide it in an “equitable” manner.
When dividing marital debt, the court may attempt to apportion the debt relatively equally to both spouses, or it may assign responsibility for repayment primarily to one spouse. The court may also use debt to offset the value of assets it awards to each spouse.
It is important to keep in mind that the creditor is not a party to your divorce and that while the divorce decree may assign a couple’s debt liability with respect to one another, it does not alter the contractual relationship with the creditor. Thus, if you have a joint credit card, the decree will generally state that one of you is responsible for payment; however, from the creditor’s perspective, BOTH of you remain liable for payment of the debt. This means that, even if your ex-spouse is supposed to pay the debt, if he or she doesn’t do so, the creditor can then come after you for payment.
If your ex-spouse defaults on a payment of a joint debt that was allocated to him or her in the decree, you can return to court to enforce the decree and seek remuneration from your ex-spouse. Of course, this takes time and money, although it is possible that the court may order him or her to pay your attorney fees. In the meantime, you may wish to consider making the payments to protect your credit rating.
If you have questions about the division of marital debt, call Kruse Family Law at 612.231.9865 or email corwin@krusefamilylaw.com
