Can I take my ex-spouse to small claims court for her half of debt that wasn't covered in the divorce agreement?
When my divorce was settled, neither my ex or I had the ability to pay our credit card debts. So there was no mention of them whatsoever in our divorce agreement. The thought was that the credit card companies would write off the debt. Some did, but one company sued me, and I ended up having to settle the debt with them for less than the total due. I had to take a loan out to pay this debt, and I'm still paying it off.
The account was in my name, but she had her own card on the account, and I have statements showing that the charges were for family/household items. So in my opinion, she is liable for half the debt. (in reality, she charged far more to the account than I did)
So my question is: can I take my ex-spouse to small claims court for her half of the debt? Or would a judge throw the case out and say it's a probate matter? I don't think there's anything I can do in probate court because the divorce was finalized. I imagine a probate judge would tell me I should have settled it during the divorce proceedings. But that's just my speculation - any thoughts/ideas are appreciated.
Thanks in advance!
Spinozer
Probate and Family Court Rule 401 Financial Statements
You recognize that the Probate and Family Court cannot make a marital property division order regarding property the Court doesn’t know about. Neither you nor your ex-spouse listed these credit cards on the financial statement as required by Probate and Family Court Rule 401. Did it just happen this way, or did you both of you agree to not list the credit cards ?
If the credit cards were property or debts that neither you nor your spouse knew about at the time you filed for divorce, then you would have grounds to go back to the Probate and Family Court to ask that the “discovered” property be divided. In your case the Court is not going to reopen the matter. The credit card is in your name, so the Court will leave it that way, and leave it to you alone to deal with the resolution of the debt. If you both agreed to not list the property on the Probate and Family Court Rule 401 financial statement, then your might have a weak basis to settle this issue in small claims court. However, if your ex-spouse raises the defense that the credit card was marital property, then a small claims judge is not going to hear the case. I think it unlikely that a small claims judge would divide this property, since the judge knows the Probate and Family Court had or has jurisdiction (legal authority to hear a case) over the credit card as marital property.