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Ex Wife Refusing to Pay Debts

After a divorce my ex wife and I were ordered to pay accounts under the divorce decree. But she decided she was not liable.

I was divorced in November 2007. My ex was under the divorce decree ordered to pay a one-year free financing loan we had (I was primary and she was co). Under the same decree I was ordered to pay her credit card (which she was primary and I was co). I was paying credit card and have proof. She decided she was not liable to pay the free financing loan because it had lapsed the one-year, interest accrued, then went to collections. She does not think she has to pay this now because it is in collections. I stopped paying her credit card and now we are summoned to appear for a civil summons on the credit card. She is remarried I am still single. I was going to pay the free financing loan but was advised against it by my divorce lawyer due to fact that I would still be responsible for the credit card. If I took her back to court she would only receive a slap on the wrist and possibly given another 6 months to pay. If she takes me back to court that would be possibly all that would happen to me for not paying her credit card. If we both don't pay the debts, other than our credit being severely damaged, what could the divorce judge do to us? Hold us in contempt? What does that mean? On the civil summons could they garnish our wages? Would this also affect her new husbands credit?

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Bill's Answer
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Updated: Oct 20, 2014

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Thanks for the question. It is a bit complicated in that the answer involves a mix of state domestic relations and marital status law, civil practice and enforcement of judgments, and federal collections practices, credit reporting, and consumer protection. Since the outcomes could depend on which state has jurisdiction, you could throw in the law of jurisdictional conflicts. Since I am not an attorney licensed in your state, what you will be getting here is my opinion, which happens to be based on a lengthy experience in finance. You should not consider this answer as a legal opinion; you will need to contact an attorney in your home state for reliable answers to your legal questions.

Divorce and debt

I count a total of five questions embedded in your question, the first having to do with the divorce decree. The small portion of your decree referenced by you and concerning two of your family's unsecured debts seems quite normal -- in divorce agreements and decrees or judgments, parties are often ordered to pay debts that are primarily in the other partyÂ’s name. Equitable apportionment of the aggregate debt accrued during the marriage is the goal in these decrees, that is, an order which divides the debt according to ability to pay. Therefore, the legal liability (which of you actually signed the credit contract on a given debt) is usually not that important in divorce court.

The three most important factors here are the parties' relative incomes, the historic job stability for both in order to project future earnings, and the size of the debt, all of which leads to the determination by the court as to which party will have the ability to pay the debts by comparison to the other party. Your ex-wifeÂ’s statement that she did not make the payments as ordered by the court because the debt has gone to collections has no legal foundation of which I am aware. Regardless of the collection status of the debt, she is almost certainly required by the divorce decree to continue making payments.

You and your ex should get together for the purpose of forming a common front. If you do, that answers the third issue. The divorce judge will not do anything to you for not making the payments as ordered so long as neither you nor your ex-wife file a petition against the other for nonpayment of the debt ordered to be paid in the divorce decree. Neither of the two creditors can complain to the judge about non-payment as contempt of the order because they have no standing in your divorce case. They are not parties, and it is highly dubious that they could ever become parties.

The answer to the final sub-question is that, "yes," if the creditors receive valid civil judgments they may be able to garnish wages as to the either of you after the waiting periods and procedures required by your state in order to collect the judgment. To prevent garnishment or other judgment enforcement action, you should be able to negotiate directly with the law firm representing the creditors for a payment schedule making regular payments to pay all or a major portion of the debts at a level which you can afford.

In your question where you wrote that you had sought the advice of your divorce attorney on the issues concerning your continuing payment of the credit card debt, I think that you were on the right track. I always advise consumers to seek and follow all good legal advice by an attorney licensed in your state. The reason for this advice should be quite obvious in that the outcomes of most questions very often turn on a small difference in state law.

However I don't see where you continued your questions to your divorce attorney on the other matters and issues that concern you. If you are not sure about the quality of the answers from that particular attorney, it is not very much trouble to ask your local bar association for a referral to another attorney. An attorney referral for a consultation is frequently free of charge.

What parts of your divorce decree that you have chosen to divulge seems pretty standard in the large majority of states. Even though the judge swapped your consumer debt in the instance cited by you (where you pay hers, she yours) that is often done to even out the obligations according to the projected relative ability to pay between you and her. If this assignment of debt was made by your agreement, the judge will rarely impose a different outcome even if the debt assignment is apparently one-sided. In states where an income and expense statement for each party is required to be made a part of the record, the judge will have the opportunity to examine the relative economic status of the parties. The Court may inquire about the fairness of an agreement if the assignment of debt is unreasonable under the economic conditions revealed in the record. If the party accepting an unreasonable debt burden is represented by his attorney, such an inquiry would be rare. Once agreed to and incorporated into the court's decree in your case, a willful violation or refusal to comply could be the basis of a contempt action initiated by the party whose debt is being ignored by the party assigned to pay it.

Contempt

In your case, if you and your ex agree not to file a contempt action, the judge will not be notified that his order is being flouted by both of you. In this way the penalty for contempt will not become an issue. However, if your ex is unwilling to work with you to resolve these problems, you may have little choice but to file a motion for contempt. There are two basic forms of contempt, civil contempt and criminal contempt.

The rules for civil contempt would probably be applied in this case, and you would be ordered to bring your behavior into compliance or report to the county sheriff to start an indeterminate jail term. Most states severely restrict the length of the time in jail (usually from 4 to 7 days). If you have not paid up to date by the end of that time, your contumacious position will be reviewed for possible extended commitment. By this time you would have paid up or taken the defense that you are without means to purge your contempt. If this holds true after evidence is taken, you must be released as indigent with a new date to report back for review. These procedures vary considerably from state to state, so you would need to consult an experienced local attorney for answers to your questions.

Since both you and the ex seem to be equally derelict in your debt assignments under the decree, I am sure you both can abstain complaining against the other. That is the only sure method to keep the judge from reviewing less than stellar performance of the court's orders.

Creditor standing in divorce court

The question has arisen whether the creditors could complain to the judge that they were not being paid as ordered under the divorce decree and have the issue of the parties' contempt raised in that manner. What must be remembered is that a divorce decree has only two parties before the court, and any order resulting from the proceeding affects modifies or rejects rights, assets, and statuses only between those two people. No matter how the rights or remedies of any other person or thing, even if profoundly affected, the effect is merely incidental and a coincidental benefit to the creditors. So, the effect of the decree seems to try to ensure that the creditors are paid in a reasonable manner. However the effect is coincidental, attempting to ensure that one of the parties is not defaulted on one of his/her obligations with the negative effect that default would have on the party. The creditors as entities are not being protected accept incidentally. Therefore the creditors cannot complain that the decree is being violated and they are not being paid, since they are not parties to the case and have no standing to complain to that court.

Collections & spousal liability

However the creditors could file their own cases in civil court (which the credit card company has done). I understand that they have sued you both, I guess her as primary signer of the initial credit contract, and you in some capacity. You should look into exactly what your liability is to the credit card. Again you need to see a local consumer attorney to look into your liability because if they just sued you and you actually have no liability, you could have yourself dismissed as a defendant in the pending case, and that solves the possible garnishment concern as well.

There is one other way that you could have incurred liability without having signed a credit contract as co-debtor, and that is if you are living now or at the time the credit card account was opened by your wife were living in a community property state. The debt incurred during your marriage was probably used for the benefit of both members of the marriage, so that is how liability would accrue to you IF community property laws apply. The community property states are CA, LA, NV, TX, AZ, WA, WI, ID, and NM. If you never lived in one of these states, you can dispose of the community property possibility as the basis for your liability.

If you are a proper party defendant to the credit card suit and a judgment is rendered for a specific amount owed, the judgment can be collected by wage garnishment against any defendant included in the judgment order singularly or simultaneously. The garnishment amount is normally 25% of net income (that is, after withholding) but this varies from state to state. The creditor does not have any duty to "even out" the judgment liability between you and your "ex." They can collect 100% from you or from her, whichever is more convenient for them. This kind of liability is called "joint and several liability." This may seem unfair, but you can still sue the "ex" if you end up paying the larger share of the debt.

Liability for premarital debt

Finally, it is very unlikely that your former wife's new husband will become liable on this card debt unless he explicitly assumes liability at this late stage, which would be somewhat pointless. Since the debt was determined before the new marriage, the debt could not be considered beneficial to the marital community. So, I cannot find liability for the even under the sometimes expansive definition of marital property in some community property states.

As you can see, this is quite a complicated issue, which is why I again strongly recommend that you consult with an attorney in your state. I wish you the best of luck in resolving these issues, and hope that the information I have provided helps you Find. Learn. Save.

Best,

Bill

www.bills.com

14 Comments

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  • RA
    Nov, 2012
    Ryan
    My wife and her ex divorced about 5 years ago, at which time it was stipulated in their divorce decree that he would retain and assume all financial responsibility for a jointly-owned timeshare. The timeshare had and still has an outstanding mortgage obligation, along with the customary monthly maintenance fees. As of right now this all adds up to about $12K, potentially several thousand more after collection fees. To keep a long story short, her ex received a Chapter 7 discharge and did not reaffirm the timeshare. He did continue making payments for a while after the discharge, but we just learned that the payments stopped several months ago and the timeshare company is now in the foreclosure/collection process with seemingly no interest in working out any kind of settlement or cure to the default. My wife was sure to let them know that she is not employed and had no intention of giving them a dime, to which they responded that they would likely be pursuing him, not her, anyway. Not sure if the timeshare company truly isn't aware of her ex's Chapter 7 or is just trying to lure my wife into a false sense of complacency, but in any event, we are thinking it's only a matter of time before the timeshare company comes looking for money from my wife. Right now, we are considering a few different options. Our top choice would be a Chapter 7, because we don't want to still be dealing with this timeshare in some way, shape or form in another 10 years, however, it looks as though (with my income) we may not pass the Means Test. We have a consult tomorrow with a bankruptcy attorney to determine if there is any hope of squeezing through a Chapter 7, but we also need to know what, if any recourse she has with regard to her ex's contempt of the divorce decree. Assuming that the court interprets the agreement at face value and finds for my wife, what remedies can she seek and when? Does she have to wait until there is a judgment against her, a garnishment against her future pay or we're simply making voluntary before she can claim damages? We are in New Hampshire.
    0 Votes

    • BA
      Nov, 2012
      Bill
      If the ex-spouse filed a successful chapter 7 and did not reinstate the timeshare loan, then the timeshare lender has no claim against the ex-spouse. Reinstatement renews the borrower's liability for a loan that is discharged in a successful bankruptcy. A debtor's lawyer must sign a reinstatement, and I would be flabbergasted if any lawyer would agree to sign a reinstatement for a timeshare.

      Based on the statement the timeshare lender made to your spouse, they seem to believe they have a claim or cause of action against the ex-spouse. Perhaps the ex-spouse reinstated the loan. It is more likely this particular collection agent did not realize the loan was discharged in bankruptcy, or does not understand the law. Or, perhaps the collection agent was being chatty in hopes your spouse would reveal financial information in kind.

      A divorce decree binds the two parties — the ex-spouses. A divorce decree is not binding on third parties such as lenders. As you hint in your question, if one party to a divorce decree does not follow it and causes harm to the other party, the harmed party has a cause of action against the other for a breach of contract, contempt of court, or perhaps even negligence. Or, maybe all three theories. Which theory the harmed party would use depends on his or her state law.

      You ask when the harmed spouse can file an action against the harming ex-spouse. You also mentioned New Hampshire. My exposure to New Hampshire law is slight, and I would do more harm than good to even venture guesses to your questions. You follow the right path by consulting with a New Hampshire lawyer who has bankruptcy experience. He or she will review the facts here in detail, and advise if and when to pull the trigger on a bankruptcy filing, and under what theories the harmed spouse can file an action against the ex-spouse.
      0 Votes

  • DT
    Oct, 2012
    Deborah
    My boyfriend's ex-wife was ordered to pay the second they had on the house as her half of the debt owed. Now she said she plans to file bankruptcy and cannot pay the loan. His name is still on the loan and she will not take his name off even though there is an order to do so. He lives in Washington State. Is there anything he can do so he does not have the creditors after him?
    0 Votes

    • BA
      Oct, 2012
      Bill
      The only way the ex-wife could remove her ex-husband's name from the second mortgage would be for her to refinance the loan. I have an incomplete view of the facts here, but based on what little I know, it seems unlikely a mortgage lender would be willing to refinance a loan for someone who is so financially unsteady they teeter on the edge of a bankruptcy filing.

      Let us assume the ex-wife files a chapter 7 or chapter 13 and does not pay the second mortgage. If the second was a joint loan, both borrowers almost certainly have joint and several liability for the loan, which means if one does not pay, the lender has the right to collect the entire balance from the other borrower. Joint and several liability does not change when one borrower files bankruptcy. (There is an exception for chapter 13 cases in community property states for married couples.) Your boyfriend's options are limited should the lender pursue him for the unpaid debt:
      • Negotiate a settlement where he pays less than the total balance due.
      • File bankruptcy.

      Urge your boyfriend to consult with a bankruptcy lawyer in his state of residence. I am not suggesting that bankruptcy is the best solution. However, a bankruptcy lawyer will explain his options in greater detail than I have here, including what state exemptions apply for property he owns. I realize a lawyer's time is not cheap. The cost of not knowing one's rights and options can be very expensive.

      0 Votes

  • TJ
    Jan, 2011
    Tasha
    My new husband is facing some of these problems. In the divorce decree they agreed to equally divide the debt they owed; however, we keep getting surprise calls, summons, etc from creditors that he was never informed were attempting to collect a debt. Because we are responsible people, we take these calls and have ended up paying over 6,000 dollars to these creditors, while his ex-wife doesn't answer the phone and has paid nothing. He makes about half as much as she does, and she has ended up leaving us with full physical custody of their four children (in the decree physical custody was to be split and no child support was awarded). This has been and continues to be a huge financial drain on our family. What can we do to remedy the situation?
    0 Votes

    • BA
      Jan, 2011
      Bill
      If your spouse's ex is violating terms of the divorce decree, then you need to bring this to the attention of the Court. If your spouse used an attorney during his divorce (and was satisfied with the attorney's performance), he should contact the same attorney. If not, he should speak with a different lawyer that specializes in family law about two issues: the ex's breaking the divorce decree and re-visiting the custody/support issue.
      0 Votes

  • 35x35
    Oct, 2010
    Erick
    In my wife's first marriage, she lived in Arizona (community property state) where her ex bought a car in his name. One month later, she left the abusive situation and moved to another state. The divorce was final a year later and she had a Chapter 7 (no assets) bankruptcy discharge. The car loan was not put into the bankruptcy because she never thought of it (it was in his name, his car, and he was making payments for it). She remarried me that year and then a year later, her ex stopped making payments on his car. Now 5 years later, she received a summons and complaint suing her (and him) for the value of the car plus interest. My questions are: -Doesn't her bankruptcy protect her even though this isn't listed on it? -How can this car even be considered community property? It was in his name, she was only with him for one month after he bought it, and he didn't quit paying for it for a 2 years after their separation. She was already divorced, bankrupt, and remarried by then! -She is a stay at home mom. Even if they did get a judgement against her, how could they collect? Could they come after our joint assets (bank accounts, cars, house)? or could they only come after her separate assets? (paychecks, which she has none). Thanks!
    0 Votes

    • BA
      Oct, 2010
      Bill
      I think it is an amazing sequence of events for the creditor to find that the debtor was married at the time the contract was executed, then had the wherewithal to realize the ex-spouse had liability for the debt under Arizona's community property law, was able to find the ex-spouse (who is remarried and presumably using a different name), and now includes the ex-spouse in a lawsuit. The creditor either had a tremendous investigator or some assistance from the debtor. If the facts you presented are accurate, what you described is permissible under the law because your spouse resided in a community property state. one spouse incurred a debt that your spouse did not include in her bankruptcy filing after she divorced. You do not mention your state of residence, so it is impossible for me to say whether the liability for the debt is joint or separate. Consult with an attorney in your state to learn your rights and liabilities.
      0 Votes

  • BA
    Sep, 2010
    Bill
    Consult with your divorce attorney, or the attorney that you worked with in the case from four years ago. In general, courts despise seeing the same parties litigate the same issues repeatedly. The court will view whatever proposal you offer to remedy this situation permanently with favor.
    0 Votes