Portrait of John K Grubb

Texas Divorce and Prenuptial Agreement

4550 Post Oak Place, Suite 201 • Houston, Texas 77027-3139

Phone: 713-877-8800 • Fax: 713-877-1229

Who gets the debt in our divorce?

When couples divorce, most Houstonians erroneously think that any debts by the spouses are divided. They take for granted that marital debt will be divided equally, regardless of who made the credit card purchase or took out the loan to renovate a home or pay medical bills.

 

Liabilities in a marriage are viewed much like the divorcing couples’ assets. If the debt was taken on before the marriage, it is considered separate debt. If the debt was incurred during the marriage, it is considered marital. But categorizing debt into separate and community does not automatically determine who will actually be responsible at settlement.

 

The Texas Family Code provides that you are liable for the debts of your spouse only if 1) your spouse incurs a debt at your request (agency) or 2) the debt is for necessaries. “Necessaries” vary from case to case, but in all cases they include food, shelter, medical care (with the exception of most cosmetic procedures) and clothing.

 

Complex divorces, especially when the partners have been married for a long period of time, often present situations where the divorce liability division is not clear. The courts frequently look at who controls the property when considering debt division. In general, one spouse’s separate property is not subject to the other spouse’s debt. For example, if debt was incurred during a marriage to renovate an inherited house, the debt is viewed as benefitting the inherited property only. The non-inheriting spouse is generally not liable for the debt, even though he or she may have agreed to the renovation expense.

 

It is important to remember that debt division in a divorce settlement doesn’t affect a creditor’s ability to collect the amount owed from either spouse. If a divorce decree allocates the liability to your spouse, the creditor can still seek payment from you if your spouse doesn’t make payment.  If your name is on the contract for the house, car, vacation home, and credit cards, you are still liable.

 

Since a divorce decree does not offer protection from the creditor’s ability to seek payment from either spouse, the best option when it comes to debt and divorce would be to pay off all marital debt. There are two main alternatives to disposing of community debt

 

  1. Selling joint property and settling debt or
  2. One spouse pays the majority of the debt, but requests (and in most cases receives) a greater share of the community property in return

 

When it comes to allocating community property and debt between the spouses, it is important that the Houston divorce attorney representing you has a complete and accurate inventory of both the marital assets and debt. A detailed inventory makes an equitable division of the property and outstanding debt incurred during the marriage possible.

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