Dividing Debts in a California Divorce

Generally, in a California divorce, both spouses are liable for all debts incurred during marriage, and even some debts incurred by either spouse before marriage.

What debts are considered “community debts”?

In California, Family Code section 910 makes it clear that the community is liable for all debts incurred before and during the marriage but before separation. This rule applies of whether one spouse had exclusive management and control of the assets, or whether only one party’s name was on the debt. This means that both spouses are equally liable for any such debts.

Furthermore, this rule applies regardless of whether the debts benefited the marital community, e.g., one person goes on a shopping spree, or a gambling spree and incurs huge debts; those are still community debts. This rule also means that one spouse’s prior support obligations or arrearages to a former spouse are now the new marriage’s community debts. The innocent spouse (the one who didn’t incur these debts), however, may have a reimbursement claim for the payment of these debts.

Be sure you know the pre-marriage debts and obligations of your future spouse before you marry and consider entering into a prenuptial agreement to protect the community assets.

Generally, each party’s separate property is not liable for the other spouse’s debts, no matter when they were incurred. There is an exception, however; a spouse is personally liable for a debt incurred by the other spouse for that spouse’s “necessities of life” (food, clothing, shelter, etc.) while they are living together. The non-debtor spouse, however, will have a right to be reimbursed to the extent that the debtor spouse had separate or community property available but not used at the time the debt was incurred.

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