My soon to be ex-husband opened new credit cards in my name and maxed them out. How can I ensure he gets the debt in the divorce?

Another thing you might consider is what the laws are when it comes to marriage and debts. You might be shocked to learn that in some states, any debt your spouse racks up while you are married is also considered your debt.

But what if your partner racks up debt behind your back? Or after you’re separated?

Imagine Lisa, for example, who separated from her husband Brad four months ago. They rented their shared home, and mostly kept their finances separate, except for a joint credit card that they used for household purchases. Lisa’s savings and other accounts are separate, and she has about $20,000 saved.

When Brad moved out of their shared home, Lisa called the credit card company and cancelled the joint credit card. But when she recently got her credit report, she discovered three credit cards in her name that she didn’t apply for. The cards were maxed out, with a total debt of $45,000. Lisa called the credit card companies and found that one of the bills had been sent to collections.

This scenario is many people’s worst nightmare, which is why it’s important to have a grasp on the laws related to joint finances and property before you get married.

A closer look at property laws

In common law states, which covers 41 states, property owned before the marriage is considered separate, and any property acquired during a marriage is not automatically considered to be owned by both parties (1).

In states with community property laws, property and debts acquired during the marriage are owned equally, however, property owned before the marriage, as well as debt, are not considered to be owned by both parties (2).

So, if your spouse racks up debt in a community property law state, you could be liable for it. In a common law state, you could be liable for a spouse’s debt if you co-sign a loan, it’s a joint account or if the debt incurred was for joint property or essential goods for your family (3).

According to Justia, debt incurred after a separation but before a divorce is final may be treated “as that spouse's separate debt.” But, this depends on the state's laws and when a court officially recognizes the date of separation (4).

Justia also notes that although a divorce decree will state who is responsible for each debt, the decree “does not alter your original contract with the creditor.” So, if your ex doesn’t pay a debt, the creditor can still pursue you for payment (4).

What to do when incurred debt becomes identity theft

If you were in a situation like Lisa’s, being completely unaware of debts piling up in your name, the first step you could take is placing a freeze on your credit with all three credit bureaus. You could also place a fraud alert on your credit reports — both freezes and fraud alerts are free (5).

Opening credit accounts in someone else’s name without their knowledge is fraud, and when a romantic partner does this, it’s referred to as coerced debt (6). Clearly, this is much different than debts incurred on a joint credit card that both parties were aware of.

If you were in this scenario, you could consider reporting the identity theft to the Federal Trade Commission and to local police. However, this can be a difficult step when identity theft is committed by someone you know. If your romantic partner is abusive, it can also be dangerous to take these steps.