Equitable Distribution of Marital Debt in Divorce: A Professor’s Guide to Post-Separation Debt and Bankruptcy

As an attorney, I often receive questions regarding divorce debt. Unfortunately, one of the main reasons for filing for bankruptcy is because of a divorce. That’s why my law practice focused mostly on divorce and bankruptcy. Today’s question is from Melanie, who is navigating the early stages of her divorce.

By Alexander Hernandez, J.D., Professor, and Author of Consumer Bankruptcy Law (Routledge).

Updated on November 14, 2025.

The Divorce and Debt Dilemma: Threats and Shopping Sprees

Equitable Distribution of Marital Debt in Divorce: A Professor’s Guide to Post-Separation Debt and Bankruptcy

As an attorney, I often receive questions regarding divorce debt. Unfortunately, one of the main reasons for filing for bankruptcy is because of a divorce. Today’s question is from Melanie, who is navigating the early stages of her divorce.

The Divorce and Debt Dilemma: Threats and Shopping Sprees

Melanie’s estranged husband, Andy, recently sent her a string of text messages, threatening her with responsibility for his substantial debt. Andy even included photos of himself on shopping sprees and explicitly stated that he would file for bankruptcy to ensure that creditors come after her. Melanie’s question focuses on the issue of post-separation debt.

Marital Debt: The Rule of Equitable Distribution

The general rule is that debt accumulated during the marriage is the responsibility of both parties. This is true whether the debt is held jointly or solely in one spouse’s name.

This concept often surprises clients who believe, “If my name isn’t on the credit card, it isn’t my debt.” However, this is where the concept of equitable distribution comes into play.

Most states follow equitable distribution principles. This means that marital assets and debts are not divided equally (50/50) but equitably (fairly), considering all circumstances. A few states use a community property system, where division is typically equal.

If the law only looked at whose name was on the debt, the spouse with better credit (who secured the mortgage, car loan, or credit cards) would always get stuck with the entire burden. To achieve fairness, courts look at the debt’s purpose and when it was incurred.

• Example: If Spouse A owes $1,000 before the marriage, but the credit card balance grows by $9,000 during the marriage, that $9,000 increase is considered marital debt and is subject to equitable division.

Post-Separation Debt and Dissipation of Assets

Melanie’s specific issue is about post-separation debt incurred deliberately by Andy.

The law treats debt incurred after separation differently, often referred to as a “reverse” application of the marital debt rule. Generally, debt incurred after the date of separation (with the permanent intent to end the marriage) is the sole responsibility of the spouse who incurred it.

However, if Andy’s blatant actions include wasting cash, then the concept of dissipation of marital assets or marital waste is possible. For example, if proven in divorce court that Andy wasted $5,000, since half of those funds belong to Melanie, Andy would owe Melanie $2,500. If there are assets to distribute, such as a marital home, and suppose the home’s equity was to be distributed equally, Melanie would be credited the $2,500, which means the remaining equity would be split equally.

A family court judge would scrutinize Andy’s actions incurring debt on shopping sprees without an ordinary or legitimate purpose, especially with the intent to harm or spite his spouse. This debt will almost certainly be deemed a dissipation of marital assets and will be allocated entirely to Andy in the final divorce decree.

Why the Threat of Bankruptcy is Likely Empty

Andy’s threat to file for bankruptcy to shift the burden of his debt to Melanie is legally weak and potentially dangerous for him.

Bankruptcy Fraud: Andy’s admitted intent to incur substantial debt for the purpose of threatening his spouse and then immediately filing for bankruptcy presents a significant risk of discharge denial under the Bankruptcy Code.

1. A court (or the bankruptcy trustee) could object to the discharge of the debt under 11 U.S.C. § 523 (for debts obtained by fraud or willful and malicious injury).
2. Worse for Andy, the court could deny his entire Chapter 7 discharge under 11 U.S.C. § 727 for bad faith acts like transferring property or concealing assets with the intent to hinder, delay, or defraud creditors. His text messages provide direct evidence of this intent.

In short, Andy’s plan to use bankruptcy as a weapon against Melanie is more likely to result in him being responsible for the debt and potentially losing the benefit of his bankruptcy discharge entirely.

Colleges and universities can purchase my bankruptcy law textbook directly from Routledge Publishing. Paralegals and students who are buying single copies can do so via Amazon Books. To access my YouTube channel, click this link. You can also listen to my podcast on Spotify.

You can learn more about filing for bankruptcy and the bankruptcy petition via this link. Information on the bankruptcy court system, contact information for trustees, and your state’s exemptions can be found here. The federal bankruptcy exemptions are listed here. The latest version of the 341 Meeting of the Creditors can be found here.

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Please note that the information on this site does not constitute legal advice and should be considered for informational purposes only.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Divorce and bankruptcy laws vary significantly by state. Always consult with a qualified attorney in your jurisdiction for advice specific to your situation.

Updated initially on April 24, 2025.