Who Is Responsible for Debt in a New York Divorce?

The same framework that applies to assets applies to debt. Marital debt — incurred during the marriage for marital purposes — is subject to equitable distribution. Separate debt — typically incurred before the marriage, or after separation, or for purely individual purposes — generally remains the responsibility of the spouse who incurred it.

Examples of marital debt:

• Mortgage on the marital home
• Car loans for vehicles purchased during the marriage
• Credit card balances for household or family expenses
• Home equity lines of credit used for home improvements
• Medical debt for family medical expenses

Examples of separate debt:

• Student loans incurred before the marriage (though loans taken during marriage may be partly marital)
• Credit card debt incurred solely for one spouse's personal expenses after the date of separation
• Business debts related to a separate property business

Here is the most important thing to understand about debt in divorce: a divorce court order does not change your legal obligation to creditors. If your mortgage, credit card, or car loan is in both names, the creditor can still come after both of you regardless of what your divorce decree says.

If the court orders your spouse to pay the mortgage and they don't, the bank can sue you. If your spouse runs up a joint credit card after the divorce decree and doesn't pay it, your credit suffers. This is why:

• Joint accounts should be closed or refinanced into one spouse's name as part of the divorce process
• The marital home should be refinanced or sold, removing one spouse from the mortgage
• Creditors must agree to changes in responsibility; they are not bound by your divorce decree

Student loans are often a significant source of confusion. In New York, student loans incurred before the marriage are generally separate debt. Loans taken during the marriage are more nuanced — courts may consider who benefited from the degree (did the whole family benefit financially from the additional earning power?) in deciding whether the debt is marital.

If one spouse ran up debt for purely personal or wasteful purposes — gambling, an extramarital affair, excessive spending — the court may assign that debt entirely to the spouse who created it, rather than treating it as a shared marital obligation. This is known as dissipation and courts take it seriously.

While your divorce is pending, take these steps to protect yourself:

• Monitor all joint accounts and credit reports regularly
• Close joint credit cards you are not actively using — or at minimum request that no new charges be allowed
• Do not make large purchases or take on new debt
• Keep paying bills on time to protect your credit score, even if you expect the debt to be assigned to your spouse
• Document any post-separation spending by your spouse on joint accounts

Most divorces settle rather than go to trial. When negotiating debt division, it often makes sense to pair assets and debts together — for example, the spouse who keeps the car takes the car loan; the spouse who keeps the house refinances the mortgage in their own name. The cleaner the separation of financial obligations, the lower the risk of future conflict.

At Weinrieb Law, we help clients understand the full picture of their marital balance sheet — assets and debts together — and negotiate settlements that protect their financial future.