A marital debt is defined analogously to a marital asset. If the debt was acquired during the marriage and prior to separation, the debt is marital and subject to division in divorce.

All debt, however, is not created equal. There are at least two issues when dividing marital debt in a divorce.

First, how will the debt be divided? Will the debt be assigned to one party, or will both parties be required to contribute to the debt?

Second, if the debt is assigned to one party, will that party receive credit for paying the debt? In other words, will payment of the debt offset all, or a portion, of the assets a party receives.

These questions are partially answered by the Pennsylvania Supreme Court case Duff v. Duff. In Duff v. Duff, a spouse is entitled to full credit for his or her post-separation payment of marital debts if the payment is made from marital funds. For example, if a spouse uses a $5,000 marital checking account to pay for $5,000 in marital credit card debt, the spouse would not be viewed as having received a marital asset in the transaction.

The more difficult question is what happens when there are not enough marital assets to satisfy all marital debts and a party uses post-separation income to satisfy debt? The answer: it is up to the parties or the court.

In the Pennsylvania Superior Court case Biese v. Biese, a spouse was given a credit of $16,500 in reduction of debt using post-separation earnings. In Smith v. Smith, the court did not give credit for a similar debt reduction.

Also, there are types of debt that a court will treat differently. For example, in Hicks v. Kubit, the court held that a student loan incurred during the marriage was a marital debt, but assigned the student loan debt solely to the party who received the education without an offset of the assets received. In Harasym v. Harasym, the court refused to reduce the marital estate for a $10,000 debt a spouse incurred due to a Medicare fraud settlement. In Harasym v. Harasym, the court held that the spouse who incurred the $10,000 Medicare fraud settlement debt was solely responsible for the debt and was not entitled to offset assets with the debt.

In general, resolution of marital debts may be challenging, and will depend on the facts and circumstances of each case.