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Can I be responsible for any debts my spouse incurs after we have separated?

Posted by Jaime Kissinger | Jun 18, 2018

If you and your spouse have separated, and you see that your spouse is incurring lots of debt, you may be wondering if you are responsible for any of it. The answer is it depends.

The general rule in California is that a spouse ceases to be responsible for any debts incurred by the other spouse once they have separated. However, this rule has an exception, and the exception depends upon when the debt was incurred and what the debt was for.

There are two time periods you need to be aware of after you and your spouse separate. The first is the time between your date of separation and the date your judgment of dissolution is entered, and the second is the time after your judgment of dissolution is entered. During these two periods, there are three categories of debts that a spouse may incur. They are: common necessaries of life, necessaries of life, and non-necessaries. Common necessaries are any items that are necessary to sustain life and include things such as food, clothing, housing, and medical care. Necessaries of life, like common necessaries of life, are any items that are necessary to sustain your spouses' station in life. Non-necessaries are any items that don't fall into the other two categories.

Between your date of separation and the date your judgment of dissolution is entered, you could end up being responsible for your spouse's debts if the debt was incurred for the common necessaries of life or the necessaries of life for your children. Specifically, section 2623(a) states, "debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred."

To better understand this, let's assume that every year prior to your separation, you and your spouse took a trip to New York for your work conference. You both made lots of friends at the conference and your spouse enjoyed attending the conference. Now, you and your spouse have separated. Your spouse attended the conference this year using money loaned money from a friend and is insisting that you pay for the trip. Are you responsible for this debt? NoYour spouse voluntarily chose to attend the conference and it is not a common necessary of life or a necessary of life for your children.

However, now assume that your spouse has lost their job and has had to move in with friends. Your spouse has no savings or investments, and has been paying for food and rent with a loan. You on the other hand, are steadily employed and have a decent income. Are you responsible for the loan? Likely, yes. The debts incurred are necessary for your spouse to live, and your spouse has no way to pay them. You have a decent income, so you have the ability to pay.

While you may be on the hook for common necessaries of life and necessaries of life, you will not be responsible for any non-necessary debts incurred by your spouse. These types of debts are specifically the responsibility of the spouse who incurred them. Family Code section 2623(b).

For example, after you separated, your spouse went out and bought a brand new Porsche in their name alone with a loan from a bank. However, after you separated, your spouse took one of the two cars you both owned that is in good condition. Are your responsible for the loan on the Porsche? Likely no since your spouse did not need the Porsche.

Once the court has entered a judgment of dissolution, you cease to be responsible for any debt your spouse may incur regardless of what the debt is for. The debt becomes the sole responsibility of your spouse. Family Code section 2624 states, "Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the parties' marital status or after entry of a judgment of legal separation of the parties shall be confirmed without offset to the spouse who incurred the debt."

To illustrate this, assume a judgment of dissolution has been entered in your case and your spouse has opened a credit card to pay for rent and food. Can you be responsible for the credit card debt? No, because your responsibility for any debts incurred after separation ceased when the judgment of dissolution was entered.

About the Author

Jaime Kissinger

Jaime L. Kissinger built her family law practice on the philosophy that families from all walks of life deserve access to quality legal services in some of the most vulnerable and difficult times of their lives. This belief drives her steadfast commitment to her clients in the Contra Costa commun...

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