Debt Incurred Before Marriage
Generally, a spouse's pre-marital debt will continue to be that spouse’s separate debt after the marriage. For example, if a husband buys a car prior to the marriage and doesn’t pay off the note, the creditor can’t go after his wife’s assets to pay the bill.
There may be some exceptions to this general rule that premarital debt remains a spouse’s separate debt. If a debt has been commingled, it may become a marital debt. For example, if a spouse has a credit card prior to the marriage, and then adds his or her spouse to the card after getting married, that debt could become a marital debt. The credit card company would have the ability to go after either spouse if the bill isn't paid, and it could affect both spouses' credit. Similarly, if a wife owned a home prior to marriage, and then refinances the loan with her husband during the marriage, the debt is now both spouses’ responsibility.
Each spouse’s actions during the marriage can affect how premarital debts are assigned in a divorce. It’s wise to think carefully about the implications of adding your name to a debt your spouse incurred before you tied the knot.
Debt Incurred During Marriage
In community property states, like Louisiana and Arizona, both spouses will be liable for most debt taken out by either spouse during the marriage. This is true even if the debt is in one spouse’s name, like a credit card held by only one spouse. Creditors in community property states can go after either spouse for repayment of any liabilities incurred during the marriage. All debt in both spouse’s names will also be the responsibility of both spouses. If you’ve cosigned for a spouse’s debt, like a spouse’s credit card, you can be responsible for payment, even if it’s not truly a joint debt.
In common law or equitable distribution states, like Georgia and Alabama, each spouse is typically only liable for debt in their own names. Still, that doesn’t mean you won’t be affected by your spouse’s individual debt taken out during the marriage. For example, if you and your spouse own a home together, your spouse’s creditors can go after your spouse’s interest in the home. Similar to community property states, you and your spouse will both be liable for any jointly titled debts.
If you and your spouse divorce, the court can also divide your assets and debts between you and your spouse. First, a judge will distinguish between each spouse’s separate debt, and the couple’s marital debt. Each spouse will be responsible for their own separate debt, while the court will apportion marital debt between the spouses.
Judges will look at each divorcing couple’s circumstances when determining how to divide debt. Debt that is attached to an asset will usually follow that asset—for example, if the husband is receiving the marital residence in the divorce, he’ll likely take the mortgage along with it. If a wife had a credit card in her name alone that she used solely for personal expenses, she’ll likely receive that credit card debt in the divorce. For truly marital debts, like shared credit cards or joint loans, the court will divide the debt between the spouses, taking into account each spouse’s income and ability to pay.
If you have additional questions about whether you will be responsible for your spouse’s debt either during or after divorce, contact a local family law attorney for advice.