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What Happens to Debt During a Divorce?

February 7, 2013  |  Elizabeth A. Schading

During a divorce, many people focus on the assets that are acquired during a marriage without giving very much thought to the debts. The division of debt during a divorce can be a very sticky issue that will have a great impact on your financial future.
While we can’t tell you who will have to pay for what, we can tell you that the courts use the principle of “equitable distribution” as their guideline. That means the court will look over the total story of the debt and that debt’s place in the marital partnership while reaching a decision about who might ultimately be responsible. That might include whether the debt was taken out before or after the marriage, whose name the debt is in, what the debt was used to purchase, whether the other spouse knew about the debt or not, and a host of other factors.

Divorce

“Equitable distribution” does not mean that you will necessarily feel that the distribution of the debt is fair. It’s quite possible, for example, to end up footing half the bill for something that your spouse never even told you about simply due to a host of other factors that impact your case.
It may feel unfair to you, but remember that you are in the middle of your situation and may not be the best judge of what is and isn’t equitable. Equitable distribution simply means that the court is going to take all relevant circumstances into account. However, a good divorce attorney can help you present your case in an advantageous way.
There are several common outcomes for marital debt:

  • You both work to pay the debt before the divorce is final so that you can both have a fresh start when the divorce is done.
  • You may become responsible for a greater portion of the debt, typically in exchange for a greater share of the assets.
  • You may become responsible for a lesser portion of the debt, often in return for a lesser share of the assets.
  • The debts could be divided equally between you and your spouse.

Be aware that the court’s assignment of the debt does not impose any obligations on your creditors. If the debt is in both names the collection agents can come after both you and your spouse. If your spouse is refusing to pay debts that he or she has been assigned, you can petition the court to enforce the divorce decree; this is something we can help you do as well so that it’s done without costly mistakes.
At Barna, Guzy, & Steffen, we have more than 80 years of combined family law experience and we are well-equipped to help you navigate these difficult financial issues. Call us for a consultation today.