Overview of Debt in Divorce

Couples going through the divorce process in Virginia may focus considerable effort on dividing up marital property, but many tend to overlook what happens to the debts they’ve incurred during their marriage. The matter may be somewhat clear in the case of a home or auto loan, but there are many complicated legal issues that can arise with other types of financial obligations. It’s typical for parties to become embroiled in heated disputes over who should be held accountable. You can trust a Virginia property and debt division attorney to advocate on your behalf throughout all aspects of a divorce case, but a summary of the key issues may be helpful.

Default Rule on Assets and Debt in Divorce: Under Virginia’s divorce statute, property and debts will be divided between divorcing couples according to the interests of equity. This translates into making a fair distribution between the two parties, so the arrangement may not be exactly 50-50. Both assets and debts are subject to the equitable division standard.

However, not all assets and debts will be split. The divorce process is only concerned with items that are “marital,” meaning you acquired the asset or incurred the debt during your marriage. If you owned the property or carried debt before your wedding date, it is separate and belongs only to you.

Departures from the Default Rule on Debt: The timing that a party incurs a debt is an important factor in determining whether it’s marital or separate – i.e., before or after the wedding date. However, there are additional considerations. For instance:

• A debt will be considered separate if the party becomes obligated after legal separation.
• An otherwise-separate debt WILL be marital if it was incurred for the benefit of the family or marriage.
• An otherwise-marital debt WILL be considered separate if the proceeds were used for the individual or a non-marital purpose.

With regards to departures from the default rule, you should note that there is a preponderance of the evidence standard of proof. To show that marital debt is actually separate – and vice versa – you need to present facts as to why the court must find it as such. 

Other Special Notes Regarding Marital Debt: Keep in mind that the rules regarding distribution of marital debts only applies if you’re seeking the court to make a determination. Where the parties are generally in agreement about how to divide up financial obligations, it may not be necessary to have the judge make a decision. With help from a divorce attorney, you can draw up an agreement regarding who will be accountable for the debt. In most cases, unless the end result is extremely unfair, the judge will enter the order.

Trust a Virginia Property Division Lawyer to Assist with Debt 

If you would like to know more about distribution of assets and allocation of debt in a Virginia divorce case, please contact Leary Law, P.C. One of our experienced property division attorneys can provide additional details after learning about your situation. We’re happy to set up a consultation at our offices in Manassas or Fairfax, VA.