Q. My Wife and I are separated. Am I liable for her debts she incurs once we split up?

James, Blythe, CA

Credit Card Debt and Divorce

If you are a co-signor on, for instance, a credit card account you are also liable to the credit card company. The fact of divorce or separation does not itself alter your obligations with third parties (since they are not allowed to participate in the divorce and they would be prejudiced s if you could unilaterally disavow liability because of divorce).

As between you and spouse, you may or may not be obligated for one-half the debt depending on when the other spouse incurred it - if after separation, generally speaking they owe it. If the debt was incurred before separation, sometimes the debt will be assigned to one party without offset depending upon what it was for and whether they have the use of that property that the debt acquired - for instance, the furniture charged on the credit card or those car lease payments. Family Code section 910(b). Keep in mind, however, that if you move back in together (reconcile) you may lose these protections. The surest way to establish that a separation has in fact occurred is through filing a proceeding or Judgment for Dissolution or Legal Separation, although separations are suspect where parties continue to live under the same roof.

If your situation instead deals with credit card debt that existed at the date of separation, then read about Epstein credits/reimbursements.

The Court does have the power under Family Code section 2623 to divide post-separation debts for "necessaries of life of either spouse or the necessaries of life of the children of the marriage" as between the parties "according to the parties' respective needs and abilities to pay at the time the debt was incurred." This is a discretionary call for the judge, and generally debt is assigned to the party who incurs it - particularly if that party is already receiving court ordered or even voluntary child or spousal support. If the post-separation debt is not for a "necessary of life" it will assigned to the spouse who incurred the debt.

Once your divorce is final or a decree of legal separation has been entered, each spouse is solely liable for all debts incurred thereafter, including necessaries. A Judgment or Marital Termination Agreement is going to assign the debt existing as of that date as between the parties.

Author: T.W. Arnold, III, CFLS