“My name is on the bank account that I accrued during the marriage so if I got divorced, my husband wouldn’t get it. She charged $40,000.00 on credit cards only in her name for stuff I never approved: fancy clothes, purses, etc. It is ruining my marriage. I want to get divorced. Shouldn’t she have to pay for it because I just learned about it and it’s in her name?”
“My husband managed the finances. He had “a lot of money” in his name which he used for our joint living expenses. He now says there is nothing left. He never notified me he was using all the money. I would have told him to cut back. Shouldn’t he have to pay for using all the money and not telling me?”
The above statements are extremely common in divorce. They can be the basis for long protracted litigation in a divorce case. In a marriage, as in life, we all have to take certain responsibility even when we don’t want to. Then there are times when we have responsibility to protect ourselves.
Divorce Court is a court of “legal equity”. It is not a Court of morality. According to the law, if an asset or debt is acquired during the course of the marriage, no matter whose name is on the asset or debt, the divorce court usually still makes it joint property or debt to be split 50/50. The irresponsible behavior of a spouse with debt or keeping money separate from you is typically not corrected by the Court. Sometimes it is weighted in your favor, but rarely are you brought back to the original position except in unusual circumstances. It feels terrible and wrong, but it is the real truth in divorce.
A divorce is a partnership. If one partner messes things up, both partners are affected.
Interestingly enough, the rules are quite opposite in debtor/creditor law and bankruptcy law. Just because parties are married does not mean that individual debts are both parties’ legal responsibility. Certainly such debt problems affect the family but not the same way. In bankruptcy court, what counts is whose name is on the debt or asset. You cannot commit fraud and switch things around in preparation for bankruptcy, but both parties don’t have to have their assets and credit affected by a bankruptcy or collection action affecting one party.
Very intelligent, business savvy couples that plan for life’s ups and downs often separate their assets and debts from the get go. If one person loses his/her job and/or credit because of unfortunate circumstances, the other person’s credit is still good and can help to carry the family until recuperation occurs.
Life brings ups and downs, sometimes in divorce, sometimes with debt. Rules vary from one courthouse to another. With the information provided, we hope that you can bounce back quickly from life’s unpredictable setbacks.
Tanya N. Helfand, Esq. is a Certified Matrimonial lawyer practicing for 23 years. She also has been practicing bankruptcy law for over 15 years and is a member of the National Association of Consumer Bankruptcy Attorneys.