How Will Our Debts Be Divided And What About Student Loans?
Dividing assets may be a major issue in resolving in your divorce case, particular where you and your spouse have accumulated a significant amount of wealth and/or property.
However, you may be wondering what happens to you and your spouse’s debt in divorce. You may have student loans or have borrowed money to invest in your future with your partner. Like assets, debts must be divided upon your divorce.
Virginia is an equitable distribution state. This means that property will be divided based upon what is deemed to be fair under the circumstances. “Equitable” does not necessarily mean a 50-50 split. Rather, the court attempts to divide assets fairly, based upon a party’s marital contributions, positive or negative.
This same principle applies to the division of marital debts.
Dividing Marital Debts
When dividing marital debts, a Virginia court will consider three factors: (1) the debts and liabilities of both you and your spouse, individually and together; (2) the basis for these debts and liabilities; and (3) the property used as security for these debts and liabilities, if any.
The debts you and your spouse incur separately, either before marriage or after separation, will remain your own obligation in divorce. For example, if you had a car loan before your marriage that has not been paid-off at the time of your divorce, this debt will be considered your separate obligation after your divorce.
For debts accumulated during the marriage, titled in you and your spouse’s names jointly or individually, you both may be held equally responsible for payment of the debt. This could mean that if your spouse does not pay his/her share (despite being required to do so), a creditor can come after you for full satisfaction of the debt.
Typically, any student loan debt you incurred prior to your marriage will remain your separate debt after divorce – unless your spouse co-signed your loan.
However, if during your marriage you took out student loans to go back to school to ultimately obtain a better job to support your family, or used a portion of the loan for the family’s living expenses, your spouse may share in your student loan debt. The court will make this decision based on the facts of your case.
If you are going through a divorce or any other family law issue, the DiPietro Family Law Group is here to help. Our qualified family lawyers have decades of experience handling all family law matters and will give you the time and attention that you deserve.