Equitable Distribution of Marital Debt in Divorce Explained

Today’s Reader’s Question comes from Melanie, who has started the divorce process. Recently, her husband, Andy, sent Melanie a string of text messages threatening her with marital debt. In his text messages, Andy included photos of him on shopping sprees and telling Melanie she would be responsible for his credit card debts. He even texted that he would file bankruptcy to ensure creditors come after her. So Melanie’s question focuses on the issue of post-separation debt.

Marital Debt in Divorce and Post-Separation Issues

For the most part, debt accumulated during the marriage is the responsibility of both parties. This, whether the parties share a credit card or the credit card is solely in one party’s name. Often, clients struggle with that fact. Clients tend to react by saying if it is not in their name, it is not their debt. But let’s look at this from another perspective.

Suppose that Spouse A has excellent credit while Spouse B does not. So both spouses depend on Spouse A’s credit, whether for a car loan, mortgage, or personal loans and credit cards.

If the law focused solely on whose name the debt is in, then spouses with good credit would always end up with all the debt. That wouldn’t be fair. That’s why most states are known as equitable distribution states. This means that assets and debts are not divided equally but equitably.

For example, in an equitable distribution state, Spouse A owes $1,000 on a credit card before marriage. However, at divorce, the credit card balance is now $10,000. Generally, that $9,000 increase in the credit card balance is marital debt. Both parties would be responsible for splitting that amount. That is equitable because Spouse B is not responsible for the initial $1,000 credit card balance.

In Melanie’s case, the issue is post-separation debt, not premarital. However, the law treats this issue the same way: in reverse. Going on a shopping spree to become heavily indebted to then file for bankruptcy, would not likely be considered marital debt.

One issue is the definition of separation. Most states require physical separation and living in separate households. It’s common for spouses to tell divorce lawyers they are separated but still residing in the same house. But they should be separate and apart with the permanent intent to do so.

So, if Melanie and Andy reside in different residences, post-separation debt would not be Melanie’s responsibility. In all honesty, Andy would even have an issue filing for bankruptcy under those conditions. Getting into substantial debt before filing for bankruptcy will likely result in the trustee objecting to the bankruptcy or even considering it bankruptcy fraud.

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Updated on April 24, 2025.