Will My Ex-Spouse Have to Pay the Debts Discharged in My Bankruptcy?

12 Jan Will My Ex-Spouse Have to Pay the Debts Discharged in My Bankruptcy?

If you file bankruptcy, you might be concerned about listing debts included in your divorce decree. Perhaps the divorce decree assigned certain debts to you, and you are worried that the creditors might ask your ex-spouse to pay the debts if you do not.

While this is a valid concern, remember that you do not have a choice about which debts to list and which debts not to list, because you always are required to list every debt you have, even if it is contingent or disputed.

If you are concerned about making sure your ex-spouse does not have to pay a debt included in your bankruptcy, you can always pay it later, after your bankruptcy is finished. In fact, it’s possible your ex-spouse might even petition the bankruptcy court for an order that you continue the payments, to hold your ex-spouse harmless. However, there’s something that’s often overlooked, which might get you off the hook unexpectedly for the debt you think your ex-spouse might be liable for.

Divorce decrees commonly assign debts for each party to pay. Oftentimes, however, the lawyers involved do not check to see whether a party is really signed onto the debt. Sometimes it is simply assumed that, for example, a credit card debt is a joint debt just because both spouse’s names are on the billing statement. Then, the divorce decree might assign the debt to you, and you assume that if you don’t pay it, the creditor will start chasing your ex-spouse for the payments. If that were to happen, a major headache could be the result.

It might be possible to prevent this by checking with the creditor to see if your ex-spouse really did sign an agreement to pay the debt. If not, there is no lawful basis for the creditor to try to get the money from your ex-spouse, unless you lived in a community property state and the creditor has the wits to assert that the debt was a community debt in your marriage.

Often you should be able to convince the creditor that because your ex-spouse never signed an agreement to pay, the creditor cannot proceed to collect from him or her. That way, the debt really does go away in your bankruptcy, and you have no worries that your ex-spouse has to pay it.

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Craig W. Andresen is a consumer bankruptcy lawyer in Bloomington, Minnesota, with 22 years’ experience in consumer and small business bankruptcy cases. He is the Minnesota chair of the National Association of Consumer Bankruptcy Attorneys, and is a member of the Minnesota State Bar Association’s Bankruptcy Section. Mr. Andresen lectures often on the topic of consumer bankruptcy at local and national legal seminars.
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