Divorce and Debt Collectors

  This is the first in a series of blogs that will explain the interplay between Debt and Marriage. Some of the areas that will be addressed in this series include the effects of Bankruptcy, whether or not a Creditor can reach assets of the marriage, how debts are divided upon divorce, and other issues related to Debt. This post will address some of the basic information related to when a creditor may be able to reach the assets of a Spouse.

     First, you have to understand the difference between marital debt and separate debt. A debt that was incurred during the marriage is far more likely to be considered marital debt than debt incurred prior to the marriage. For debts that are incurred prior to the marriage, there must be some act after marriage that would turn the debts into marital debt. For instance; if you agree to co-sign or re-execute a financing agreement or mortgage with your new spouse. That could turn previously separate debt into marital debt.

     Even if a debt is considered to be marital, a creditor may or may not be able to pursue collections against you individually for the debts of your spouse. Generally speaking, if a debt is considered marital, the collector may attempt to recover against property that is considered marital, but not necessarily against property that is considered separate. Like debt, the nature of property depends on how and when it was acquired.

     For a creditor to collect against property that you had prior to marriage and is not considered marital, they must be able to go forward on some specific theories of recovery. One of those theories is known as the "doctrine of necessaries". If you and your Spouse were living together at the time the debt was incurred, and it was for a necessary reason like medical expenses, you may be on the hook for that debt. The creditor may well be able to reach property you had prior to marriage. For instance, if you had land gifted to you by your parents prior to marriage and the creditor can prove the doctrine of necessaries, they may be able to collect against your property.

     This is simply a brief overview of when a creditor may reach the assets of a spouse for the collection of a debt. The facts of your case may skew the results of this analysis. For more information, it is recommended you seek out a Consumer Protection attorney in your local area that can advise you on how to address debts that arise during marriage.