How to Split Debt in a Delaware Divorce

Dividing assets gets most of the attention during a divorce, but debt division is where the real financial damage often happens after the decree is signed. Delaware uses equitable distribution under 13 Del. C. Section 1513, which means the Family Court divides marital debt fairly — not necessarily equally — based on factors like each spouse's income, earning capacity, and the circumstances under which the debt was incurred.

The critical point most people miss: your divorce decree binds you and your ex, but it does not bind your creditors. A judge can order your ex-spouse to pay the joint Visa card, but Visa was not a party to your divorce. If your ex stops paying, the bank will report the delinquency against both of your credit files and can sue either of you for the full balance.

What Counts as Marital Debt in Delaware

Delaware courts classify debt as marital or separate using the same framework applied to assets. Debt incurred during the marriage for marital purposes — the mortgage, joint credit cards used for household expenses, car loans on family vehicles — is marital debt subject to equitable distribution.

Debt that one spouse brought into the marriage typically stays with that spouse. Student loans taken out before the marriage are usually considered separate debt. However, student loans incurred during the marriage can be classified as marital debt, particularly if the degree enhanced the household's earning capacity.

The gray area involves debt that one spouse incurred secretly during the marriage — hidden credit cards, gambling debts, or personal loans the other spouse did not know about. Delaware courts weigh whether the debt benefited the marital household when deciding how to allocate it.

Debt Types and How to Handle Each

Joint credit cards. The safest approach is to pay off the balance and close the account before or immediately after the divorce is finalized. If that is not possible, transfer the balance to an individual card in the responsible spouse's name. As long as the joint account remains open, both cardholders are liable to the bank regardless of what the decree says.

Mortgage. If one spouse is keeping the house, they need to refinance the mortgage into their name alone. Until that happens, both names remain on the loan, and the departing spouse's credit is exposed to every missed payment. Separation agreements often include a refinancing deadline — typically 90 to 120 days after the decree. If the occupying spouse cannot qualify for refinancing, the house may need to be sold.

Car loans. Vehicle loans follow the same principle. If the decree awards one spouse a car that is financed in both names, the receiving spouse should refinance the loan individually. In Delaware, transferring the vehicle title costs $35 at the DMV. If the vehicle has an active lien, you will also need Form MV35 — which is only available in person at a DMV office, not online.

Medical debt. Medical bills incurred during the marriage for either spouse or the children are generally treated as marital debt. Post-separation medical debt is typically assigned to the spouse who incurred it.

Tax debt. Joint tax liabilities from returns filed during the marriage are marital debt. If you filed jointly and the IRS comes after you for your ex's underreported income, you may qualify for innocent spouse relief under IRS rules — but that is a federal process separate from your Delaware divorce.

Protecting Yourself After the Decree

The 30 days after your divorce is finalized are the most important window for debt-related action. Move fast on these steps:

1. Pull your credit report. Get a copy from all three bureaus (Equifax, Experian, TransUnion) to identify every joint account. You may find accounts you forgot about or did not know existed.

2. Close or separate every joint account. For each joint credit card and line of credit, either pay and close it or have the responsible spouse transfer the balance to an individual account. Document everything.

3. Set up credit monitoring. Even after you have separated accounts, an ex-spouse who retained a joint account could run up charges. Credit monitoring alerts you to new activity on accounts tied to your Social Security number.

4. Keep copies of the decree's debt provisions. If your ex defaults on debt they were ordered to pay, you may need to go back to the Delaware Family Court to enforce the order. The enforcement mechanism is a Petition — Rule to Show Cause (Form 321), which initiates contempt proceedings.

When Equitable Does Not Mean Equal

Delaware judges consider multiple statutory factors when dividing debt: the length of the marriage, each spouse's financial circumstances, contributions to acquiring the debt, and custody arrangements. A ten-year marriage where both spouses worked will likely see debt divided more evenly than a situation where one spouse ran up personal credit card debt without the other's knowledge.

Marital misconduct — affairs, abuse — is explicitly excluded from Delaware's equitable distribution calculations. The court divides debt based on financial factors, not fault.

Keeping Track of It All

Between joint accounts, individual transfers, refinancing deadlines, and creditor notifications, the debt untangling process involves dozens of coordinated steps across multiple institutions. The Delaware After-Divorce Checklist includes a joint account workbook that tracks every account, its current balance, the responsible party, and the action needed — so nothing slips through while you are juggling the rest of your post-divorce transition.

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