In California, payment of most debt acquired during the marriage is considered the responsibility of both spouses. Debt acquired before marriage or after the spouses separate is the responsibility of the person who acquired it. Even credit cards listed in only one spouse's name become community debts if they are acquired during the marriage. Nor will the fact that the credit cards are in the name of only one spouse spare the other spouse from his/her responsibility of the debt in a divorce action.
There are some exceptions to this law, including unpaid student loans. Those debts are the responsibility of the student spouse and are not the responsibility of the other spouse after separation.
Spouses can also choose not to be responsible for each other's debt either by pre-nuptial or post-nuptial agreements. Those agreements are subject to third party rights.
At the time of divorce, a court will divide community assets and debts as equally as possible between the two parties. The divisions may be made by offsetting one debt for another of similar value, offsetting one asset for another, or even accepting more debt responsibility in exchange for receipt of more assets. However, regardless of how the court divides the debt, the rights of creditors of these debts will not be changed. For instance, if a credit card issued in the wife's name is assigned to the husband for payment, the creditor will enforce payment of the debt against the wife, if the debt is not paid. However, the wife can request the court order reimbursement from the husband if she pays the creditor.
Like dividing community assets in a divorce action, dividing community debts can also be complicated. There can be many issues in determining the division: Was the debt acquired during the marriage or before or after separation? Did the community assets pay the separate debt of a spouse and is the community entitled to reimbursement for that debt? Is the community entitled to reimbursement from repayment of a student loan from the student spouse? Is a spouse entitled to reimbursement from the community if his/her separate property was used to pay a community debt? Can one spouse be held responsible for creating liability in the other spouse for a debt?
Because debt issues in the event of divorce can be complicated, it is in the best interest of both parties to obtain legal representation from qualified family law specialists.