How Are Debts Divided in a California Divorce?

Q: Am I responsible for credit card debt my spouse ran up without telling me?

Usually yes, if the charges were made during the marriage. Family Code section 910 makes the community liable for debts incurred by either spouse during the marriage, even without the other spouse's knowledge. The exception is Family Code section 2625, which allows the court to assign a debt to the spouse who incurred it when the spending was not for the benefit of the community. You will need the statements to show what the money was spent on.

Q: Who pays the debts we took on after we separated?

It depends on what the debt was for. Under Family Code section 2623, post-separation debt for the necessaries of life, such as rent, food, and the children's expenses, is assigned based on need and ability to pay. Post-separation debt for anything else stays with the spouse who incurred it. This is one more reason the date of separation is worth fighting over in a case with significant debt.

Q: Can the judge divide our debts unequally?

Yes, in specific situations. The general rule under Family Code section 2550 is an equal division, but Family Code section 2622 allows an unequal allocation when community debts exceed community assets, based on each party's ability to pay. Family Code section 2625 allows assignment of a debt that did not benefit the community, and Family Code section 2641 assigns student loans to the spouse who received the education. The parties can also agree to any allocation they choose in a written settlement.

Daniel Gramling, Esq.

3 hours ago

8 min read

The short answer: California treats debt the same way it treats property. Debts incurred by either spouse between the date of marriage and the date of separation are community debts, and the court divides them equally under Family Code section 2550, regardless of whose name is on the account. Debts incurred before the marriage or after separation generally stay with the spouse who incurred them. The rules have real exceptions, and the way a debt is characterized, timed, and assigned can shift thousands of dollars from one side of the ledger to the other. This guide explains how judges at the Riverside Family Law Courthouse and the San Bernardino Justice Center approach property division when the balance sheet includes credit cards, car loans, tax bills, and student loans.

Community Debt vs. Separate Debt in California

Timing controls characterization. Family Code section 910 makes the community estate liable for debts incurred by either spouse during the marriage, whether or not the other spouse knew about the debt or agreed to it. Under Family Code section 2551, the court characterizes every liability as community or separate before it divides anything, and the same date-of-separation rules that govern property govern debt. That is why the date of separation is often the most contested fact in a case with heavy credit card use. A charge on the day before separation is community; the same charge the day after is separate.

Your name on the account does not decide the question. Many clients in Riverside and Ontario are surprised to learn that a credit card held only in the other spouse's name is still a community debt if the charges were made during the marriage. The reverse is also true: a card in your name that your spouse ran up while you were married is a shared obligation. The creditor's contract is with whoever signed, but the family court's division is based on when and why the debt arose. The two questions are separate, and the section below on creditors explains why that matters.

How the Court Assigns Each Category of Debt

Family Code section 2620 through section 2627 set the rules. The Legislature gave family courts a specific roadmap for debt, and each category has its own treatment. Family Code section 2621 confirms premarital debts to the spouse who incurred them, without offset. Family Code section 2622 divides debts incurred during the marriage and before separation equally, but if the community debts exceed the community assets, the court may assign the excess in a way that reflects each party's ability to pay. That second rule is the one that most often produces an unequal result.

Post-separation debts follow need and purpose. Under Family Code section 2623, a debt incurred after separation but before judgment for the necessaries of life of either spouse or the children is confirmed to either party according to need and ability to pay. A post-separation debt that was not for necessaries goes to the spouse who incurred it. Family Code section 2624 assigns debts incurred after judgment to the spouse who incurred them. Family Code section 2625 lets the court assign a debt incurred during the marriage to the spouse who incurred it when the debt was not for the benefit of the community, which is the provision most often used for gambling losses, an affair, or spending that the other spouse never saw.

Student loans are a special case. Family Code section 2641 assigns an education loan to the spouse who received the education, regardless of when the loan was taken out, and it lets the community seek reimbursement for community funds used to pay for education that substantially enhanced that spouse's earning capacity. The reimbursement claim has a ten-year presumption built into it, so the timing of the degree matters. This issue comes up often in 401(k) and pension cases where one spouse funded the other's professional degree.

Debts Paid After Separation: Epstein Credits and Watts Charges

Paying a community debt after separation can earn you reimbursement. In In re Marriage of Epstein (1979) 24 Cal.3d 76, the California Supreme Court held that a spouse who uses separate earnings after separation to pay a community debt is generally entitled to reimbursement from the community. Lawyers call these Epstein credits. The credit is not automatic; the court can deny it where the payment was really a form of support, or where the paying spouse was using the asset the debt secured. Keep every statement showing which account paid which debt after the separation date.

The other side of the coin is the Watts charge. Under In re Marriage of Watts (1985) 171 Cal.App.3d 366, a spouse who has exclusive use of a community asset after separation, most often the family home, may be charged for the reasonable value of that use. In a typical case, one spouse keeps paying the mortgage on the house and claims Epstein credits, while the other claims Watts charges for the months of exclusive occupancy. The two claims are often netted against each other. The math depends on having the mortgage statements, the rental value, and the move-out date, so start gathering that evidence now.

Disclosure and Proof: Where Debt Cases Are Won

Every debt must be disclosed on the FL-142. Family Code section 2104 requires each spouse to serve a preliminary declaration of disclosure that includes a Schedule of Assets and Debts on form FL-142 and an Income and Expense Declaration on form FL-150. Hiding a debt is as serious as hiding an asset, and Family Code section 2107 gives the court tools to sanction a spouse who fails to disclose. Attach the most recent statement for every account, even the ones you think are the other spouse's problem. The court cannot divide what it does not know about, and an undisclosed debt can surface later as a set-aside claim.

Characterization evidence wins these fights. If you claim a debt was not for the benefit of the community under Family Code section 2625, you need the statements showing what the money bought. If you claim a debt is premarital, you need the account opening date. If you want an ability-to-pay allocation under Family Code section 2622, the FL-150 for both parties and current pay stubs are the proof. At hearings in Riverside County and San Bernardino County, the spouse who shows up with organized statements usually gets the allocation they asked for; the spouse who testifies from memory usually does not.

Creditors Are Not Bound by Your Divorce Judgment

The judgment binds your spouse, not the bank. This is the point that causes the most trouble after a divorce. If the court assigns the joint Visa balance to your former spouse and he or she stops paying, the creditor can still collect from you on any account you signed. Family Code section 916 addresses liability after division, and it generally protects a spouse from debts assigned to the other spouse, but that protection does not rewrite the contract with a creditor who was never a party to the case. Your remedy is against your former spouse, through an enforcement or contempt proceeding, not against the bank.

Practical protection matters more than the judgment language. Close joint accounts as soon as it is safe to do so, and ask the court for orders that require refinancing or payoff by a set date. For a mortgage or car loan assigned to one spouse, insist on a refinance deadline and a sale provision if the deadline passes. Consider a hold-harmless and indemnity clause in the judgment so that any collection against you creates a clear claim for reimbursement. Our divorce lawyers build these provisions into every judgment we draft, and our flat-fee and limited-scope options cover judgment drafting for parties who have already reached an agreement.

Frequently Asked Questions

Am I responsible for credit card debt my spouse ran up without telling me?

Usually yes, if the charges were made during the marriage. Family Code section 910 makes the community liable for debts incurred by either spouse during the marriage, even without the other spouse's knowledge. The exception is Family Code section 2625, which allows the court to assign a debt to the spouse who incurred it when the spending was not for the benefit of the community. You will need the statements to show what the money was spent on.

Who pays the debts we took on after we separated?

It depends on what the debt was for. Under Family Code section 2623, post-separation debt for the necessaries of life, such as rent, food, and the children's expenses, is assigned based on need and ability to pay. Post-separation debt for anything else stays with the spouse who incurred it. This is one more reason the date of separation is worth fighting over in a case with significant debt.

Can the judge divide our debts unequally?

Yes, in specific situations. The general rule under Family Code section 2550 is an equal division, but Family Code section 2622 allows an unequal allocation when community debts exceed community assets, based on each party's ability to pay. Family Code section 2625 allows assignment of a debt that did not benefit the community, and Family Code section 2641 assigns student loans to the spouse who received the education. The parties can also agree to any allocation they choose in a written settlement.

What happens if my ex does not pay a debt the judgment assigned to them?

The creditor can still come after you on any account you signed. The divorce judgment does not change your contract with the bank. Your remedy is to go back to family court to enforce the judgment against your former spouse, including a request for reimbursement and attorney fees. The best protection is to close joint accounts during the case and to build refinance deadlines and indemnity language into the judgment before it is signed.

Talk to a Riverside Property Division Attorney

Get the debt allocation right the first time. Debt division is decided on paperwork: account opening dates, statements, the separation date, and both parties' income. Daniel Gramling, Esq. and Gramling Law Group handle contested and uncontested property division cases in Riverside, San Bernardino, Ontario, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California, with flat-fee and limited-scope options for parties who need help with one part of the case. Call (909) 654-4575 or contact us through this website to schedule a consultation. If your spouse has not responded to the petition, read our guide on what happens when a spouse does not respond to divorce papers, and if attorney fees are a concern, see who pays attorney fees in a California divorce.