Divorce means dividing the assets and liabilities of the marriage, and that vow of “for better or for worse” means the divorcing spouses share and usually divide the debts they accumulated as a couple.
As a rule, mortgages and credit cards are usually the largest joint debts. Both spouses are share responsibility for anything they signed together, such as joint tax returns, joint credit card debts, joint mortgages or loans.
In most jurisdictions, debt incurred by a spouse before he or she married, such as a student loan, remains the responsibility of that person.
Mortgage debt means that the marital home is encumbered. If one spouse buys out the other, the purchaser normally must refinance the property.
A couple can divide marital debt, but the creditor is not bound by their agreement. This means that if one spouse fails to pay a debt assigned to him or her in the divorce agreement, the creditor can legally pursue the other spouse and attempt to require him or her to pay the debt. Moreover, late payments made by one spouse show up on the other’s credit report.
If the couple divorce in a jurisdiction where all the property acquired during the marriage is on the table – one of the so-called “kitchen sink states,” such as Kansas, which include separate property in the marital estate – judges enjoy latitiude about the division of marital debt. If the jursdiciton considers only property acquired jointly during the marriage, judges consider which spouse incurred the debt and which one is in a better position to pay. Other states determine which spouse is responsible for the debt.