No lingering liability among ex-spouses

29 Jan No lingering liability among ex-spouses

Marriage, or a former marriage, does not make one spouse personally liable for the debts incurred by the other. Yet I’ve had a round of clients reporting that debt collectors have told them “it’s the law” that they are responsible for the debts of an ex. Not so, in California anyway.

Californians seem to be more vulnerable to this lie because our community property system is not well understood. Community property does not make both spouses individually liable for a debt. The community property law says two things: 1) the law will presume that whatever a married couple acquires during marriage is community property; and 2) the community property is liable for the debts of either spouse incurred during the marriage.

I sometimes analogize it to a marriage that, for debtor/creditor purposes, is comprised of three “persons”: he, she, and the community property. The community is liable for the debts of either of the others. The separate property of he or she is liable for debts they incur, in or outside of marriage.

Community property laws eliminate the discussion of which spouse earned the money or which spouse incurred the debt. It boils it down to liability of the accumulations during marriage for the debts of either.

But, what the debt collectors don’t know, or won’t tell you is that when the marriage is over and there is no longer community property, one spouse is only liable for the debts that person incurred (and for any debts assigned to them in the dissolution of marriage).

This of course is the condensed version of community property law, but the message is this: don’t fall for the line that the debts of your ex are necessarily yours. Ask that any debt collector validate your liability for the obligation. More about validating a debt.

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Cathy Moran, Esq.

I'm a certified specialist in bankruptcy law (California State Bar Board of Legal Specialization) practicing in the San Francisco Bay Area for more than 30 years. In addition to practicing bankruptcy law, I train new practitioners at Bankruptcy Mastery.
  • rjpixie
    Posted at 17:56h, 06 August

    This is a very well laid out article. I am in a community property state and I keep seeing everywhere that even after divorce I will be still ‘on the hook’ for the debt my husband incurred on his individual credit cards. I understand being liable for things with my name on it but it becomes confusing when advice from counsel states you are personally liable for the ex-spouses debt after the community is dissolved.