One of the most contentious and often difficult parts of the divorce process is the division of the spouses’ marital debts. The spouses may be able to agree on how the debts will be divided—but often they cannot, and the court must determine how the debts will be divided—and sometimes the court will order certain assets be sold to facilitate the payment of the debts.

If the spouses live in a community property state (as opposed to an equitable distribution state), and if a debt was acquired by one spouse before the marriage, it will generally remain that spouse’s separate debt and obligation. But if the debt was acquired during the marriage it is a community debt and both spouses are responsible for it—at least in the eyes of the divorce court. Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In other states—so-called equitable distribution or common law property states—the court attempts to divide the spouses’ debts equitably (fairly) and may order one spouse to use separate property to pay the debts, or may order marital property sold to pay the debts, and award one spouse more of the remaining marital property.

In practice, the difference between the division of debts in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property and community debts on a 60-40, 70-30, or other unequal basis.

When evaluating the division of debts, it is also important to consider any tax implications for the division of the debts—such as the mortgage interest deduction on the spouses’ home—and the impact on a spouse’s credit when the other spouse is given a debt obligation in the divorce, but fails to pay the debt. Unless the creditor in such a situation has agreed to look only to the spouse given the debt, the creditor may pursue the other spouse for payment of a defaulted debt.

In North Dakota, which is an equitable distribution state, the division of marital debts during a divorce is based on what is considered fair, rather than an automatic 50-50 split. Debts acquired by one spouse before the marriage typically remain that individual's responsibility, while debts incurred during the marriage are subject to division by the court. The court will consider various factors to determine an equitable division, which may include the spouses' economic circumstances, contributions to the marriage, and the debt's purpose. The court may order the sale of assets to pay off debts or assign more marital property to one spouse to offset the burden of debt. It's important to note that even if a divorce decree assigns debt to one spouse, creditors may still pursue both spouses if the debt is joint. Additionally, tax implications and the impact on credit scores are important considerations when dividing debts. Spouses should be aware that the division of debts can have long-term financial consequences and may need to work with attorneys to negotiate a settlement or to understand the court's decision.