If my ex-spouse is assigned our joint credit card in the divorce, can the creditor still come after me?

Two separate relationships: the divorce and the account

A joint credit card involves two different sets of obligations. One runs between the spouses, and the divorce settles it: the agreement and the judgment say which of you pays the balance. The other runs between each of you and the company that issued the card, and it comes from the account, not from the divorce. The card company is not a party to the divorce case.

The Judicial Council's guide on common challenges when splitting debt puts the consequence directly. If spouses agree between themselves that one of them will pay off a joint debt, the company or person the debt is owed to, such as a credit card or mortgage company, does not have to honor that agreement. If the spouse who agreed to pay misses a payment, the guide says, the company may try to get payments from both of you, and the missed payment may hurt both of your credit reports.

So the assignment in the judgment controls who must pay as between the two of you, and does not by itself release either of you from the card company.

How a California divorce divides debts in the first place

Debts are divided in the same proceeding as property. Family Code section 2550 requires the court to divide the community estate equally, except on the written agreement of the parties or their oral stipulation in open court. In an uncontested divorce the written agreement is how the debts are assigned, and the spouses may agree to something other than an equal split.

Section 2551 tells the court what to do with the liabilities: characterize each one as separate or community, and confirm or assign it to a party under Part 6, which begins with section 2620. Section 2620 brings in every debt for which the community estate is liable that is unpaid at the time of trial, in the statute's words, or for which the community estate becomes liable after trial, and requires each to be confirmed or divided.

The self-help page on property and debts adds two practical points. Until there is a court order, any property or debt from the marriage still belongs to both spouses, no matter who is using it. And a debt in only one spouse's name is usually a debt of both if it was taken on during the marriage, while a charge one spouse makes after the date of separation, such as a vacation put on a card after the spouses separated, is that spouse's separate debt.

The rules in Part 6 depend on when the debt arose. Each one is short:

• Section 2621: a debt incurred by either spouse before the marriage is confirmed without offset to the spouse who incurred it.
• Section 2622(a): except as subdivision (b) provides, a debt incurred by either spouse after the date of marriage and before the date of separation is divided as set out in sections 2550 to 2552 and 2601 to 2604.
• Section 2622(b): to the extent community debts exceed the total community and quasi-community assets, the excess is assigned as the court finds just and equitable, taking into account factors such as the spouses' relative ability to pay.
• Section 2623: a debt incurred after separation and before judgment for the common necessaries of life is confirmed according to the spouses' needs and abilities to pay at the time it was incurred, where there is no order or written agreement about it; a debt for nonnecessaries is confirmed without offset to the spouse who incurred it.
• Section 2625: a separate debt, including a debt one spouse incurred during the marriage and before separation that was not incurred for the benefit of the community, is confirmed without offset to that spouse.

What Family Code section 916 says after the division

Section 916 is the statute that answers the question about creditors. It begins "Notwithstanding any other provision of this chapter, after division of community and quasi-community property pursuant to Division 7", so it speaks to the position once the judgment has divided the estate. Subdivision (a) has three paragraphs, and together they decide whose property a creditor may reach.

Paragraph (1) covers a debt the person incurred. The separate property the person owns at the time of the division, and the property the person receives in it, are liable for a debt the person incurred before or during the marriage, and the person is personally liable for it, whether or not the debt was assigned for payment by the person's spouse in the division. For a joint account, the point is that the assignment to the other spouse does not remove the liability of the spouse who incurred the debt.

Paragraph (2) covers a debt the other spouse incurred. The person's property is not liable for it, and the person is not personally liable for it, unless the debt was assigned to that person in the division. The paragraph adds that it does not affect the liability of property for the satisfaction of a lien on that property.

Paragraph (3) covers a debt the other spouse incurred that was assigned to the person. Then the person's property is liable and the person is personally liable. If a money judgment for the debt is entered after the division, however, it may not be enforced against the person, or against that property, unless the person is made a party to the judgment for that purpose.

Where a joint credit card fits in section 916

Section 916 turns on who incurred the debt, not on whose name the divorce judgment puts next to it. For a debt your spouse incurred, paragraph (2) provides that once the division assigns it to your spouse, your property is not liable for it and you are not personally liable for it, apart from the liability of property for a lien on it.

A joint card is different, because both spouses are on the account. Section 916 does not itself say when a debt on a joint account counts as incurred by each spouse, and this post does not go beyond the text. What the Judicial Council's guide says about joint debts is consistent with paragraph (1): the company may try to get payments from both of you even after an agreement that one of you will pay.

The judgment still does real work. Between the spouses, the assignment is an order of the court, and it is what gives the spouse who was not assigned the debt a claim against the one who was.

If your former spouse does not pay

Section 916(b) supplies the remedy written into the statute. If property of a person is applied to satisfy a money judgment under subdivision (a) for a debt that person incurred and that was assigned for payment by the person's spouse, the person has a right of reimbursement from the spouse to the extent of the property applied, with interest at the legal rate, and may recover reasonable attorney's fees incurred in enforcing that right.

The subdivision is worded around property applied to a money judgment. It does not address, in its own terms, payments a person makes to the card company voluntarily to keep an account current; for those, the statute is silent, and the judgment's assignment of the debt is the order that governs between the spouses.

The Judicial Council's guide adds a limit on what the family court can do. You can go back to family court to make your former spouse pay what they agreed to pay, but the guide notes that this probably won't fix your credit or stop creditor calls. The page on steps after a divorce makes the same point about every order in the judgment: the court does not collect money or enforce orders automatically, and a person who needs an order enforced must ask the court.

Ways to reduce the risk that the guide describes

For the period after the judgment, the page on steps after a divorce lists closing any credit cards in both your names among the practical steps to take, along with updating beneficiaries and telling your employer.

Because the agreement cannot bind the card company, the Judicial Council's guide suggests considering options other than splitting a joint debt. They are choices the spouses make about the debt itself, not legal protections:

• Clear the debt, if possible, for example by selling items to pay it off.
• Take out a new line of credit to pay off the debt from the marriage.
• Have the spouse more able to pay take over the entire debt, and give that spouse more of the community property, or agree to a reduced spousal support order. The guide notes that both spouses may still be liable, but that this may decrease the chance of a default.

A joint debt in an uncontested divorce prepared by the office

In an agreed divorce, the written agreement that becomes part of the judgment is where the community debts are assigned, and that division is what section 916 looks to afterwards. Which spouse takes each joint card, and on what terms, is a choice the spouses write into that agreement, with the guide's cautions about creditors in view.

That agreement and the rest of the case papers are drafted by Law Offices of Rozsa Gyene, which prepares and reviews all of them for a flat fee, working in a limited scope engagement governed by California Rules of Court, rule 5.425. Representation runs to one spouse, the client, who files the papers personally under written filing instructions with the attorney's review behind them. Filing, serving, appearing in court, supplying a notary, and preparing or recording deeds are steps the office does not take. Rozsa Gyene, State Bar of California No. 208356, 3500 W. Olive Ave., Suite 300, Burbank, CA 91505.