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When discussing marital debt several factors are involved. Divorce law is concerned with who must pay which debts. Contract law is simpler as it is just concerned with debts being paid and the creditors (those to whom debts are owed) do not care who pays as long as the debts are paid.

Dealing with creditors may be the more clear-cut of the two topics. If a debt is not paid, a creditor has the legal right to take action – possibly through the courts – to force payment. If a debt is a result of a purchase that benefited the marriage, the creditor may take action against one or both spouses and, because such debts are typically classified as “joint and several”, the creditor may seek full payment from either party. Accordingly, one party may not, for example, pay one half of the debt and tell the creditor to collect the other half from the other spouse. Both spouses owe the money as separate individuals so full payment may be sought legally from either. If one spouse pays 100%, that spouse may sue the other for “indemnification” of half the debt. Of course, this applies to spouses who are ex-spouses through a divorce (or annulment). But, even if the spouses are still married and living together, a creditor could sue, obtain judgment against both, and, for example, attach the funds of a bank account which is in the name of just one spouse (and since the couple is married and residing together, there could be no legal action for indemnification).

Pennsylvania does not recognize “legal separations”. Our law holds that a couple may be living together or apart. Both are legal; however, once a divorce action is filed (but NOT final) AND the parties reside under separate roofs, they have “legally separated” status. That “status” has very limited application, but in the described scenario, it means that either spouse can run up separate debts for which the other will not be responsible. (But here’s a caveat: If a spouse with legally separated status runs up a debt by using joint funds or with funds available only because of being married, a joint debt may have been created. The same reasoning would apply if, even though living separately, the purchase benefited both spouses.) A good example of a completely separate debt is one wherein a separated spouse (or even if not separated) buys a new fur coat for a new love interest. That could hardly be said to be a purchase that benefits the marriage. The other spouse – the one who did not make that purchase – could not be successfully sued for such a debt in most cases.

So, debt run-ups that benefit the marriage are joint and several debts, and either or both parties may be sued to effect collection regardless of later changes in marital status or where either party is residing. And that applies to purchases made by one spouse with which the other spouse may not agree such as, for example, an expensive vehicle instead of one less costly. Moreover, a court-sanctioned marital settlement agreement does not legally stop such a lawsuit even if the agreement states one party is responsible for that particular debt. After all, the creditor is not a party to the agreement and therefore cannot be legally bound by it. But, if the agreement states one party must pay a particular debt but fails to do so and, as the result of legal action, the other party is forced to pay, that party may, again, sue the other for indemnification. Oh, good… In such cases, the party who did not pay probably had no money (or other assets) to cover the debt. So the party who does pay gets to sue someone who has no money. (I often tell clients that one cannot roll up an agreement and hit the other party on the head with it until they pay. They must sue to collect and typically there’s no point as the other party has no money. I also tell clients that if the other party thinks they will go to hell if they do not pay, then the agreement has better value.)

I trust you can understand from the foregoing that owing a debt may or may not stop at separation or divorce. If a party is separated or divorced and runs up a debt solely on their own with no help from present or past joint assets of the marriage, then the other party is likely not liable. However, if such a debt can be proven to be “necessary” for a separated (but not divorced) spouse, it could be a joint debt. (A “necessary” comes under the heading of basic things like food, clothing, and shelter.) There is after all a marital connection. But there have been situations where that connection was valuable. Consider a situation where a married couple has been separated for, let’s say, 10 years, and one party hits the lottery big time and dies before being able to spend it. The surviving spouse is still a spouse and cannot be disinherited even after a lengthy separation. I recently was contacted by a former client whose divorce was final some years ago. That client had just found out that her ex had died and did so with quite a bit of money in the bank, all accumulated well after the divorce. The client wanted to know if the divorce could be “reversed”! As Yogi famously said, “It ain’t over till it’s over” and that marriage was well and truly over. She could not collect, of course. I have also had clients and defendants who stopped or contested divorces because they decided to stay married and try to outlive the other party hoping to claim the estate at death.

The take-away here is no matter to what you and your ex-to-be agree regarding the debts in divorce documents, either or both of you may remain legally liable for debts proven to be marital ones. Some typical advice could be to take your fair share of the money now and cancel those credit and debit cards.