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How Will Your Debts Be Split after Your Divorce?

  • Jul 01, 2024
  • The Harr Law Firm

Red and blue figurines on scales with money in betweenDivorce is a complex and emotional process, and one of the most contentious issues often involves the division of debts. Understanding how debts are split after a divorce is crucial for both parties to ensure a fair and equitable settlement. This article provides a comprehensive overview of the factors that influence debt division, the different types of debts, and the legal principles guiding this process.

Factors Influencing Debt Division

The laws for debt division after divorce vary based on a number of factors, including the following:

  • State Laws: The way debts are divided in a divorce depends largely on the laws of the state where the divorce is filed. States generally follow one of two approaches: community property or equitable distribution.
    • Community Property States: In community property states like California, Texas, and Arizona, debts incurred during the marriage are considered jointly owned and are typically split 50/50 between the spouses. This means that both parties are equally responsible for any debt acquired from the date of marriage until the date of separation.
    • Equitable Distribution States: Most states follow the equitable distribution model, where debts are divided fairly but not necessarily equally. The court considers various factors such as the length of the marriage, each spouse's financial situation, and the reason for the debt when determining an equitable division.
  • Timing and Purpose of the Debt: When the debt was incurred and its purpose also play significant roles in debt division. Debts incurred before marriage are usually considered separate and remain the responsibility of the individual who incurred them. On the other hand, debts incurred during the marriage for joint benefit, such as mortgage payments or car loans, are typically divided between both spouses. Debts incurred for personal benefit, such as individual credit card debts for non-essential personal purchases, may be assigned to the spouse who benefited from them. Courts will closely examine the nature of each debt to determine its appropriate allocation.

Types of Debts and Their Division

The type of debt incurred will also impact how each owed amount is divided up during your divorce:

  • Mortgage and Home-Related Debts: One of the largest debts a couple may face is the mortgage on the marital home. How this debt is divided depends on whether one spouse will keep the home or if it will be sold.
    • Keeping the Home: If one spouse decides to keep the home, they may refinance the mortgage in their name, effectively removing the other spouse from responsibility for the debt. The spouse retaining the home may also buy out the other spouse's equity share.
    • Selling the Home: If the home is sold, the mortgage debt is typically paid off from the sale proceeds, and any remaining equity is divided between the spouses according to their agreement or the court's order.
  • Credit Card Debts: Credit card debts can be more complicated to divide, especially if both joint and individual accounts are involved. Joint credit card debts incurred for household expenses are usually split between both spouses. Individual credit card debts, on the other hand, are generally assigned to the person who incurred them, unless it can be proven that they were used for marital purposes.
  • Student Loans: Student loans are typically considered the responsibility of the individual who took out the loans, regardless of whether the loans were incurred before or during the marriage. However, if marital funds were used to pay down student loans, the spouse who contributed may be entitled to reimbursement or compensation.
  • Medical Debts: Medical debts incurred during the marriage are usually considered joint debts and are divided between both spouses. Courts will consider the circumstances surrounding the medical expenses, including who received the treatment and the financial impact on the marital estate.

Legal Principles Guiding Debt Division

There are also a number of legal principles that impact debt division in a divorce:

  • Marital vs. Separate Debt: Courts distinguish between marital and separate debt when dividing liabilities. Marital debt includes any debt incurred for the benefit of the marriage, while separate debt includes obligations incurred before the marriage or after separation. Understanding this distinction is crucial for determining how debts will be allocated.
  • Contributions and Economic Disparity: The court may also consider each spouse's contributions to the marriage, both financial and non-financial, when dividing debts. Additionally, the economic disparity between the spouses, including income and earning potential, can influence the division of debt. A spouse with significantly lower income may be assigned less debt to avoid undue financial hardship.
  • Fault and Misconduct: In some cases, the court may take into account any misconduct or fault that led to the accumulation of debt. For example, if one spouse incurred substantial debt due to gambling or reckless spending, the court may assign a larger portion of that debt to the responsible party.

Navigating the division of debts in a divorce requires careful consideration of various factors and a thorough understanding of state laws and legal principles. Consulting with an experienced divorce attorney can provide invaluable guidance and ensure that your interests are protected throughout the process. For professional assistance with your divorce proceedings and debt division, contact The Harr Law Firm to schedule a consultation.