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If my spouse and I have debts and other liabilities, what happens to them during and after a divorce?

Like assets, debts can be considered as community or separate debts. All debt(s) must be characterized as one or the other.

A debt incurred before the marriage is considered separate and is not subject to division. A debt incurred during the marriage is presumed to be a community debt and must be divided between the spouses in a “just and right manner.”

In the case of community debts, how the liability is assigned depends on many factors. For example, the court may consider a spouse’s ability to pay, which spouse was awarded the property securing the liability, or which spouse created the liability.

However, there is an important caveat: even if one spouse is assigned liability, creditors are not automatically precluded from proceeding against the other spouse for payment, or from foreclosing on community property that was awarded to the other spouse on divorce. To discharge you from a liability not assigned to you, further action must be taken such as refinancing the debt or seeking an agreement with the creditor that holds only one spouse responsible for repayment.