The Guide to Marital Debt - Who Is Responsible And Divorce Debt
Oct 6
6 min read
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Divorce is tough enough emotionally, but add in money troubles, and things can feel very overwhelming.
One of the biggest financial stress points is debt. Whether it’s credit cards, car loans, or a mortgage, figuring out who pays what after divorce is often just as important as dividing property.
According to National Debt Relief, debt isn’t just something to worry about during the divorce process; it might be what causes the divorce. Results from their study show 54% of Americans believe having a partner who is in debt is a major reason to consider divorce.
We’ll break down what marital debt is, who’s responsible for it, and how debt is handled in a divorce. We’ll also talk about what happens if you have too much debt to divorce, plus tips for moving forward financially.
What is marital debt?
When two people get married, their finances become intertwined. Just like marital property (like a home, car, or savings account), there’s also marital debt, debt that’s taken on during the marriage.
This can include:
Credit card balances (joint or individual cards used for household expenses).
Auto loans for family cars.
Mortgage on a house you purchased together.
Medical bills.
Personal loans used for family purposes.
Even if the debt is only in one spouse’s name, it might still be considered marital debt if it was taken on during the marriage and used for marital purposes.
By contrast, separate debt is typically anything one spouse had before the marriage, or debt incurred after legal separation, though state laws vary.
Am I responsible for my spouse’s debt?
This is one of the most common and most stressful questions divorcing spouses ask.
The answer depends on a few things:
State law
The US has two systems: community property states and equitable distribution states.
Community property states (like Arizona, California, and Texas) generally consider debt acquired during marriage as jointly owned, no matter whose name is on it.
Equitable distribution states divide debt more “fairly,” but not always 50/50. A judge may assign more debt to the spouse who has a higher income, for example.
When the debt was taken on
Debt from before marriage usually stays with the person who had it.
What the debt was for
If your spouse secretly racked up gambling debt or luxury purchases that didn’t benefit the household, you may not be on the hook.
How is marital debt divided?
If you’re wondering how marital debt is divided, the answer isn’t one-size-fits-all. The court will look at:
State laws
Income and ability to pay
Who benefited from the debt
Whether debt is secured (like a mortgage) or unsecured (like credit cards).
For example, a joint credit card used for groceries may be split equally, while a car loan may go to the spouse keeping the car. If the debt is in the form of a mortgage, this may be refinanced into one spouse’s name if they keep the house.
Even if a divorce decree says your ex is responsible for a debt, if your name is still on the account, creditors can come after you. That’s why it’s best to refinance, close accounts, or transfer balances when possible.
Who is responsible for credit card debt in a divorce?
Credit cards can be a nightmare in divorce. Many couples have both joint accounts and separate accounts in one person’s name.
Both spouses are legally responsible for joint cards. Even if one person promises to pay, the creditor won’t care - they can go after either of you.
Individual cards used for marital expenses may still be considered marital debt in divorce, even if only one name is on the account.
If your spouse maxed out a card buying luxury items for themselves, you can argue that this individual card used for personal splurges is not marital debt.
If possible, pay off and close joint accounts before divorce to avoid future disputes.
Auto debt in divorce
Vehicles can be both assets and debts. If you have a car loan:
The spouse who keeps the car usually takes over the loan.
If the car is worth less than the loan balance, the court may consider that when dividing other property and debts.
If neither spouse wants the vehicle, selling and splitting the proceeds or the leftover debt may be the cleanest option.
Mortgages in divorce
For many couples, the mortgage on the family home is the biggest debt to contend with. Here are common options taken during divorce:
Sell the house and split the profits or remaining debt.
One spouse keeps the house and refinances the mortgage in their name alone.
Both keep the house temporarily, such as one spouse staying until the kids finish school, with plans to sell later.
With the latter option, you will need to decide with your spouse how ongoing mortgage payments and other costs associated with maintenance are handled.
Marital debt after divorce
Once the divorce is finalized, debts are officially divided according to the divorce decree.
But remember, creditors don’t care about your divorce order; they just want payment. If your ex doesn’t pay a debt they were assigned and your name is still attached, your credit score could take a hit.
That’s why it’s important to:
Remove your name from joint accounts when possible.
Refinance loans into one person’s name.
Close joint credit cards.
What do I do if I am in debt and want to get divorced?
Some people wonder if they have too much debt to divorce. The short answer is no, you can still get divorced even if you’re drowning in debt.
Heavy debt does make things more complicated, particularly as you will need to be able to afford the divorce process.
Options to consider:
Debt consolidation before filing for divorce.
Filing for bankruptcy jointly before divorce is possible in some cases.
Working with a financial advisor to create a realistic repayment plan.
Divorce won’t erase debt, but planning carefully can keep it from wrecking your fresh start.
What do I do if my spouse has debt, but I want a divorce?
It’s not unusual for one spouse to carry more debt than the other. Maybe your partner has student loans, medical bills, or personal credit card debt, and you’re worried about being dragged into it if you divorce.
The bottom line is that if your spouse has debt, and you want a divorce, you may not automatically be responsible for all of it. But without careful planning, you could still end up paying. Talking with both a divorce lawyer and a financial advisor early on can help you avoid surprises.
In general, here’s what you should know:
Figure out when the debt was taken on
If the debt was taken on before marriage, it usually stays with your spouse as a separate debt.
If the debt was taken on during marriage, it’s likely it will be considered marital debt, even if it’s only in their name, though this depends on state laws.
Look at what the debt was used for
If the debt was incurred for household expenses, it’s most likely marital debt. However, if it was used on personal splurges or gambling, you may be able to argue that it should be considered separate.
Check your state laws
In community property states, debt during marriage is often shared.
In equitable distribution states, courts divide debt more fairly, which may work in your favor if you weren’t involved in the spending.
Protect yourself during the divorce
Close joint accounts if possible.
Ask your attorney about having your spouse refinance loans into their name alone, and be sure to keep documentation showing you didn’t contribute to or benefit from the debt.
Plan for your financial future
Even if the court assigns debt to your spouse, creditors may still pursue you if your spouse added your name to the account.
To really protect yourself, make sure your name is removed or the debt is refinanced.
Conclusion
Marital debt doesn’t disappear just because a marriage ends.
Knowing how marital debt is divided and planning ahead can save you from surprises later. Whether it’s credit cards, auto loans, or a mortgage, the key is to understand your responsibilities, protect your credit, and aim for a clean financial slate as you move forward.
With the right legal and financial advice, you can navigate marital debt and divorce with confidence.
For more judgment-free guidance on handling the different stages of the divorce process, download the Splitup app.
