Community property is any property that was acquired by either spouse during a marriage (excluding gifts or inheritances to a particular spouse). Community property can include real property, personal property, stocks, bonds, cash, and interest in an employer-sponsored profit share, pension plan or retirement plan. Washington is a community property state.
Community debts are any debts that either party is responsible for. A community debt arises at the existence of a marital community. Any debt acquired after marriage but before physical separation is considered community debt (physical separation does not require beginning formal legal proceedings—physical separation without intent to continue the marital relationship is sufficient). The names of both parties do not need to appear on the debt for it to become community debt. The only requirement is that the debt must have been for the general benefit of the couple when it was acquired (this scenario is complex and dependent upon particular facts; if you feel this applies to you, you should contact an attorney and explain your situation).
Separate debts occur when only one party is responsible for a debt. Separate debts are acquired either prior to marriage or after physical separation. In situations where both parties are named on an account, both may still be legally responsible for a debt that is acquired either before or after marriage. In order to avoid continued responsibility for other charges that you did not acquire, you should contact the creditor, in writing, and have your name removed from the account. This will clear your responsibility for future charges, but not necessarily for prior debts.
Division of debts during divorce
If both spouses can agree to how debts should be divided, then the court may approve the decision. Whether or not debt division is agreed to, the court is required to follow some rules when dividing debt. Consider the following:
- Separate debts should be the responsibility of the spouse who incurred the debt.
- Community debt should be divided fairly and equitably between the spouses.
Unless an agreed division is unfair or burdensome to one spouse, the court will generally allow an agreed division.
The division of debt does not relieve the other spouse of responsibility. If one spouse is responsible to pay a community debt, the other spouse is still responsible to the creditor for the community debt. Therefore, if the ex-spouse fails to pay for the debt that he or she was ordered to pay, the creditor can come after the other spouse. An agreed division does not require a creditor to go after only the spouse who was ordered to pay the community debt. If your ex-spouse fails to pay for the debt and you are forced to pay, you may sue your ex-spouse for damages that you incurred.
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