Am I responsible for my spouse’s debt? State rules

Start with the contract

Outside of divorce, the first question is simple: who signed? A lender's contract binds the person who applied and agreed to it. A joint account binds both holders. A co-signer is liable for the whole balance. An authorized user on someone else's card is usually not liable for the balance, although the account can still appear on their credit report. An account opened in your name without your consent is not your contract at all: that is identity theft, and federal law caps your liability for unauthorized use of a credit card at $50 (15 U.S.C. § 1643).

This is why the facts matter more than the feeling of "we share everything": whose name, joint or not, co-signed or not, when it was opened, and what it paid for.

Debt from before the marriage

A debt your husband or wife took on before you married stays their contract: marrying them did not make you a party to it. Community property states add a twist. California, for example, makes the community estate liable for a debt either spouse incurred before or during the marriage (Family Code § 910), but protects your own earnings from your spouse's premarital debts as long as you keep them in an account your spouse cannot draw on, not mixed with community money (Family Code § 911). If your spouse lied about debt before the marriage, write down what they told you and when; it rarely changes what the lender can do, but a lawyer will want it.

Community property states

Nine states treat most property and debts acquired during the marriage as belonging to the community: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (IRS Publication 555 lists them). Alaska, Tennessee, South Dakota, Kentucky and Florida let spouses opt in by agreement.

Even there, "community debt" and "personal liability" are different questions. Texas is a clear example: a spouse is generally not personally liable for the other spouse's debts unless they acted as the other's agent or the debt was for necessaries, but community property may still be reachable by some creditors (Texas Family Code §§ 3.201 and 3.202). California and Washington have their own rules about which property a creditor can reach. In every case the date matters: debts after the date of separation are usually treated differently from debts during the marriage.

Equitable distribution states: how debt is divided in a divorce

Everywhere else, the court divides marital debts at divorce in a way it finds fair, not necessarily in half, after looking at when the debt was taken on and what it was for. Two points surprise people:

• The divorce court's allocation does not bind the lender. If a judge assigns a joint card to your ex-spouse and they stop paying, the lender can still pursue you; your remedy is against your ex-spouse, under the judgment.
• Family expense statutes make both spouses liable for certain family necessities regardless of who signed. Illinois has one (750 ILCS 65/15); whether a given debt counts as a family expense is for a lawyer to assess.

Dissipation: gambling, secret loans, hidden spending

A debt taken on for one spouse's own purposes, hidden from the other, is often treated differently from a mortgage or the family grocery card. In many states, money wasted by one spouse during the breakdown of the marriage can be argued as "dissipation" and counted against that spouse's share; Illinois, for example, requires written notice of such a claim and limits it in time (750 ILCS 5/503(d)(2)). Texas does not use the word: it speaks of fraud on the community and reconstitutes the estate before dividing it "just and right" (Texas Family Code §§ 7.001 and 7.009). If the debt comes from gambling, this guide covers how to document the losses.

If your spouse dies

A spouse's debts do not disappear at death, but they are paid from their estate, not from your own money, as a rule. The Consumer Financial Protection Bureau lists the exceptions: you co-signed the debt, you were a joint account holder (not merely an authorized user), your state requires spouses to pay certain debts such as some health care expenses, or you live in a community property state, where property you held together may have to pay the deceased spouse's debts. A collector may contact you about the estate, but may not say or imply that you owe the debt personally when none of these applies.

What to collect before asking a lawyer

For each debt, note the facts a lawyer weighs: whose name is on it, whether it is joint or co-signed, whether you were only an authorized user, when it was opened, whether it was during the marriage, and whether it paid for household needs. Keep the accounts you never opened or authorized apart from the others, as disputed, never as yours. Own & Owe records exactly these facts, line by line, and prints them without drawing any conclusion: which of them matter, and how, is for your lawyer.

Nothing on this page tells you whether a particular debt is yours. It lists the facts and the rules that usually decide the question; a lawyer licensed in your state decides it for your case.