Whether you're liable for your spouse's debts depends on your marriage status and whether you live in a community property.
Whether you and your spouse are responsible for paying each other's debts will depend primarily on where you live. If your state follows "common law" property rules, spouses are only liable for their own debts, with a few exceptions. For instance, both spouses must pay debts for family necessities like food, shelter, or tuition for the kids, although how states treat joint and separate debts varies slightly, so you'll want to check your state laws.
However, if you live in one of a few states with "community property" rules, you and your spouse will owe most debts incurred by either of you during the marriage.
If you plan to file for bankruptcy in California or another community property state, you'll want to know about the "limited community property discharge" that arises when only one spouse files for bankruptcy. Although all community property will be safe from creditor collection, the nonfiling spouse's separate property will remain at risk (more on this below).
Am I Responsible for My Spouse's Debts?
Wanting to know the answer to this question is common when a spouse accumulates medical bills, student loans, business debt, gambling losses, or other substantial obligations. Whether you'll have to pay the debt will depend on the type of debt, whether the debt was incurred during or after marriage, and your state of residence.
Marriage and Debt in Community Property States
You likely know whether you live in a community property state. The states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. If you do live in a community property state, keep reading.
If you live in a common-law state, this section won't apply to you, and you'll want to read our article on "."
When Are You Responsible for Your Spouse's Debt in a Community Property State?
In community property states, the couple, or "community," owes most debts incurred by either spouse during the marriage, even if only one spouse signed the paperwork for a debt. Because the key is "during the marriage," it matters when the debt was incurred. For instance, if your spouse incurred a credit card debt while single, it won't automatically become a joint debt if you get married. Why? Because a spouse is responsible for credit card debt incurred during the marriage, but not before.
However, an exception can occur when a spouse signs onto an account as a joint account holder after getting married. Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.
After a legal separation or divorce, only the spouse who incurred the debt owes it unless it was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.
If you're considering wiping out debt in bankruptcy with a debt discharge, start by learning how bankruptcy works and what to avoid before filing for bankruptcy.
Can Both Spouses' Income and Property Be Taken to Pay Community Debt?
In community property states, all income earned by either spouse during marriage and property bought with that income is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse—and separate property owned before the marriage—remain separate and are the respective property of one spouse alone.
Comingling a gift or inheritance, such as by adding it to a joint bank account, could erase the protection.
Also, all income or property acquired after a divorce or permanent separation is considered separate property.
What Property Can a Creditor Take to Pay a Spouse's Debts?
In a community property state, creditors of one spouse can go after the assets and income of the married couple. This ability is powerful because most debts incurred during marriage are joint debts, regardless of whose name is on the title (in most community property states).
For example, suppose a business owner's name isn't on the spouse's boat title. In most community property states, that won't stop a business creditor from suing in court to take the boat to pay off the business owner's debts, if the boat was purchased with community and not separate funds.
Learn more about when you're responsible for your spouse's business debt.
Community property collection rules also apply to a spouse's separate debt, such as one spouse's child support obligation from a prior relationship or a debt in one spouse's name only where the spouse hid the marriage. In that case, a creditor can only take half of the spouse's community property to repay the debt.
Is a Spouse Responsible for Student Loan Debt?
With one exception discussed below, the same community property rules apply to student loan debt and other debts acquired during the marriage. The result? Both spouses are 100% responsible for a student loan taken out during the marriage, even if only one spouse signed for it. When the parties divorce, each spouse is responsible for 50% of the debt in the property settlement.
Recognizing that a student loan can benefit both spouses, California takes a more equitable approach. Under California law, student loans aren't community debts, so a judge doesn't have to split the liability 50/50. Instead, the judge will consider factors like:
- the effect of the course of study on the couple
- whether the other spouse also went to school, and
- the course of study's effect on the spouse's ability to support the couple.
(Learn how to remove student loans in bankruptcy.)
How to Not Be Responsible for a Spouse's Debt in a Community Property State
Couples in community property states can sign pre- or postnuptial agreements to treat debts and income separately. However, a contract between you and your spouse only won't affect whether a creditor can pursue you for debt (they still can). It really only impacts property and debt division upon divorce. Check with your family law lawyer or bankruptcy lawyer for clarification.
How Does Bankruptcy Work in Marriage?
If only one spouse files for Chapter 7 bankruptcy in a community property state, creditors can collect community debts against the nonfiling spouse. However, the creditor can't forcibly take community assets to pay community debt discharged in the filing spouse's bankruptcy. The creditor can collect against the nonfiling spouse's separate property.
This protection is known as a "limited community property discharge." (11 USC § 524(a)(3).) Also, if you're considering divorce, talk with your lawyer about the effect the divorce will have on your limited community discharge. You could likely lose its protection. Learn more about filing for bankruptcy without your spouse.
More Help With Debts and Marriage
For more information on personal debt and marital property, see Solve Your Money Troubles: Debt, Credit and Bankruptcy (Nolo).
