Marital debt is a difficult and emotionally charged issue that must be dealt with during divorce. Since disagreements over money are often cited by couples as one of the main reasons their marriages began to fail, it is not hard to imagine that in some cases deciding how to divide debts can be a more difficult decision than who gets custody of the children. Usually one or both parents would like to have custody of the children, but nobody wants to be saddled with debt that can take years to pay.
Dealing With Debt
You can make dealing with debt during your divorce easier if you are able to do as much as possible to eliminate your debt before you file for divorce. If this is not practical, and often it is impossible, then the next best thing you can do regarding dealing with debt in a divorce is to seek the advice of a divorce attorney as soon as you start thinking there will be no other solution for you and your spouse other than divorce.
State Laws Vary
If you and your spouse cannot agree together on how to divide the debt, then the court will have to intervene. Which in turn means that how your debt is likely to be divided will depend on the laws of the state that you live in. Some states will divide debt the same way they divide assets, as community property right down the middle. Other states will take an equitable approach to the division. Equitable does not mean equal, but rather it means that the courts will consider what is fair.
- Debts that were brought to the marriage by one spouse are likely to remain the responsibility of that spouse. An example would be a student loan. This can be the case even if the student loan was taken out during the marriage because the education received will be to the benefit of the one spouse.
- Debts that were incurred during the marriage for the reasonable expenses of the marriage may be split with more responsibility to the spouse who earns more money.
- Debts run up maliciously by one spouse may be assigned to that spouse even if they are the lower earning spouse.
Get Legal Help
Planning for the handling of your debt post-divorce is an important part of structuring your divorce settlement. Do your best to keep accurate and complete records of purchases and expenses so that you can build a case for how your debt should be distributed after the divorce. Hire an attorney who can represent you and guide you to making decisions that will best protect your financial future, and who can negotiate aggressively on your behalf.
