What happens to joint debts in a divorce?

I recently attended a CLE (also known as “lawyer school”)  called Mortgage and Divorce for Family Law Attorneys. David Jamison, from Wintrust Mortgage, was the presenter. One of the topics that was discussed was a topic that comes up often with divorcing couples: what happens to joint debts in a divorce? Often times, a divorcing couple will have several creditors to whom they owe money. For example, let’s say the divorcing couple has the following consumer debts:

– Target credit card $1,000

– Chase credit card $3,000

– Capital One credit card $4,000

In this case, the divorcing couple has $8,000 worth of consumer debt. For simplicity’s sake, let’s assume that the couple agrees that all $8,000 of that debt is “marital debt”, and let’s assume that both spouses are on each of the credit card accounts as a joint debtor.

During the divorce process, Spouse 1 agrees that they will pay the debt to Target and to Chase. Spouse 2 agrees that they will pay the debt to Capital One. Eventually (or maybe rather quickly) the divorcing couple comes to an agreement on all issues pertaining to their divorce, and they sign a Stipulation and their attorneys submit it to the Court. The Judge signs a Judgment and Decree or a Divorce Decree (or what people often call their “divorce papers”) that orders Spouse 1 to pay Target and Chase and Spouse 2 to pay Capital One.

The question that people often ask me is: what happens to Spouse 1 if Spouse 2 does not pay? The answer is that unfortunately the Judgment and Decree  does not change the parties’ contract with the creditor. So, in this case, if Spouse 2 doesn’t make payments to Capital One, Capital One could still come after Spouse 1, even though the divorce decree says that Spouse 2 is obligated to pay. Additionally, Spouse 1’s credit score will likely be damaged by Spouse 2 not making payments to the creditor (Spouse 2’s credit score also won’t be looking good).

Spouse 1 will still have recourse. Spouse 1 can sue Spouse 2 in family court for not following the Judgment and Decree. Unfortunately, by the time that issue comes in front of a Judge, the damage may very well have already been done to Spouse 1.

In an upcoming post, I will discuss some proactive ways to prevent this from happening.

 

Elizabeth Rosar Chermack is a Minnesota Divorce and Bankruptcy Attorney, and can represent you in your case.   Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation.

 

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