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Separate And Community Debts
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In Texas, there is technically no such thing as community debt. However, debt incurred during the marriage is presumed to be owed by each spouse unless there is enough evidence to show otherwise. For purposes of this article, the term community (debt owed by the community) is use for simplicity sake. Should you have any questions regarding this article or if you need assistance in identifying community and separate property debts, please contact our Houston Contested Divorce Lawyers and our Southwest Houston Contested Divorce Attorneys at 713-517-6645.
Separate debt is debt that incurred prior to the marriage. This type of debt does not automatically become community debt once you’re married. However, just like separate property, the spouses can agree to change the character of debt through agreement. These agreements are oftentimes referred to as pre- and post marital property agreements. While these agreements can partition property among the parties, they do not alter who is ultimately liable for the debt in the creditors’ eyes since, at least technically, if the debt was incurred for “necessaries”, the benefiting spouse can be held liable for the debt.
Identification and Division of Community Debt
Is it also commonplace for community debt to be divided among the parties in the final decree. In fact, there are sections in the decree that deal specifically with debt assigned to the husband and wife that list specifically the debt to be divided. However, the divorce decree’s division of debt does not re-characterize the liability for the debt created at its inception. That is, if both you and your spouse applied for the debt (e.g. a credit card) you both are jointly and severally liable for repaying the debt no matter what the decree states. For one spouse to be removed from the liability of repaying the debt, the creditor must agree – good luck there! Additionally, the divorce court does not have the authority to remove a party from the obligation to repay the debt, at least in the eyes of the creditor. Bottom line is, you could wind up getting sued for the debts awarded to your spouse in the decree.
If you do get sued be a creditor for a debt that was a community debt that was awarded to your ex-spouse in the divorce, you cannot raise as a defense that the debt is not yours because it was awarded to your ex. Instead, you can bring your ex into the suit and seek contribution from him/her based upon the contractual agreement (the decree) that states s/he is responsible for the debt. Even if you do not get sued and your ex is behind on paying the debt, you can sue him/her for breach of contract (the decree) and request relief for the amount unpaid. In this type of suit, you can also, make a claim for attorney fees, if any were incurred, as well as costs of court.
Protect Yourself In a Divorce
There are, however, some steps you can take prior to entering the final decree to protect yourself against a potential problem stemming from your ex not paying her/his share of the community debt. If possible, before the divorce is finalized, pay off the debt. Or, if you and your soon-to-be ex have agreed about which credit card debt goes with whom, transfer the balance of the debt to another card in the responsible spouse’s name only. This will relieve you from the burden of worrying about your ex’s potential future default. This solution may not be so easy if the debt is a mortgage or a car loan. Mortgage lenders will not remove a party from liability unless the loan is refinanced – same with a car loan. The two types of debt create more collateral credit score damage than probably any other type of debt because they are not easily addressed.
One thing you can do during a divorce or if you are contemplating one, is to get your credit report from the three major reporting agencies (Equifax, Experian and TransUnion). This document will list all accounts in your name for which you and your spouse may be liable. These reports will help you in splitting up the debt since they will show partial account numbers and balances as well as the type of account – whether individual or joint. The bottom line is that your credit score is an asset just like your home or car. In fact, if you don’t have a good credit score, your ability to obtain consumer or business financing may be extremely limited.
Yet another way to minimize the post-divorce problem of debt responsibility is to close as many joint accounts as possible prior to signing the final decree. If you can, refinance the car you’re going to get and ask your spouse to do the same. After your divorce is final, you may consider taking these actions:
Closing all joint accounts with a low balance or zero balance.
Request a credit report from one of the big three credit reporting agencies 90 days after the divorce is final. Look for any errors or discrepancies and aggressively challenge them in writing.
Ask each creditor to send you a duplicate notice for the joint accounts – even if the ex was assigned this account. Monitor to ensure that payments are being made on a regular, timely basis.
Make an offer for accord and satisfaction – basically, offer the creditor an amount of money in exchange for a release of your liability on the account assigned to your ex.
Communicate with the big three credit reporting agencies to notify them of the divorce and any name changes.
Create a debt reduction plan. There are many excellent resources available, such as Consumer Credit Counseling Services, Dave Ramsey, or a church based debt reduction plan.
A fair and equitable property and debt division can be tricky depending on the nature and extent of each. What may seem to be a simple solution may not be after all of the facts are known. Determining the true character of assets and debt (separate or community) can be a complex and time consuming endeavor. Accordingly, if you are contemplating divorce or have been served with a divorce suit, the first thing you must do is contact an experienced Houston Contested Divorce Lawyer or a Sugar Land Contested Divorce Attorney, depending on where you live. A Houston Contested Divorce Lawyer who is experienced in family law matters should be able to assist you in determining your legal rights and responsibilities. The Southwest Houston Contested Divorce Attorneys and the Houston Contested Divorce Lawyers at the Law Offices of Steven Tuan Pham can assist you with the most complex contested divorce and division of community properties and debts. Contact the Houston Contested Divorce Attorneys at the Law Offices of Steven Tuan Pham at 713-517-6645 or fill out our online contact form and an attorney will respond to you within 24 hours. Law Offices of Steven Tuan Pham is convenienctly located in southwest Houston in the heart of the Westchase Business District.
Texas Family Law and Divorce have numerous complicated issues, especially when it comes to spousal support and alimony and the division of community properties such as real property and retirement accounts that cannot be easily "divided." In addition, matters only complicate more when there are minor children involved. This is exceptionally true when the parties do not agree with child custody, child support issues, and visitation rights. When facing these difficult issues, you need to consult with an experienced Houston Divorce Attorney or an experienced The Woodlands Divorce Lawyers at the Law Offices of Steven Tuan Pham Our Houston Divorce Law Firm assists clients in Harris County, Montgomery County, Fort Bend County, Brazoria County, Galveston County, and Liberty County to resolve their family matters. We also assissted a number of clients in resolving their divorce out of court through unconcested divorce and collaborative law. In addition, our Houston IVF Attorneys are also experienced in the invitro fertilization process and doctors' forms and waivers. We can also draft gestational surrogacy agreements and contracts between natural parents and the surrogate and assist you in proving these documents in court. Please contact our Houston Family Law Attorneys and our Houston Divorce Lawyers for more information and see how we can help. You can reach our family law attorneys at 713-517-6645 or complete our Online Contact Form.