When you’re looking to make a break from your spouse, the last thing you want is to be stuck with their debts. You know that you’ll have to take responsibility for some debts, but which ones?
Virginia law distributes some debts between divorcing spouses and excludes other debts as one spouse’s individual responsibility. Let’s examine the factors involved in determining which is which.
Debt is Divided Similar to Assets in Virginia Divorce
In Virginia, marital property is divided equitably in divorce—that means it is divided according to equitable principles of fairness. Equitable may mean equal, but not necessarily. A divorcing couple may develop their own agreement for dividing up property, or they have the judge make a determination.
Debts are treated the same way. That means it is important to have arguments ready to show why it is fair to allocate debts in a way that aligns with your goals. Your attorney can use those arguments in negotiation, and if negotiation fails to produce a satisfactory agreement, those arguments can be used to persuade the judge in court.
Determining Whether a Debt is Marital or Separate
The general rule of thumb is that debts incurred during the marriage are a joint responsibility that must be allocated in divorce while debts a partner owed before the marriage remain that partner’s individual responsibility. But there are many exceptions to this rule, and that’s where it gets complicated.
For instance, if one partner bought a house before the marriage but the couple lived in it while they were married, they may both potentially be held responsible for the mortgage, as well as debts for furnishings. On the other hand, if one partner run up credit card bills on a joint account during the marriage but using the funds extravagantly without the other partner’s knowledge or buys gifts for a mistress or boyfriend, then those debts could be allocated to that partner and the innocent partner would not be liable for a share of them.
It is critically important to save evidence that could be used to show why a presumably separate debt should be divided or why a presumptively marital debt should be treated as separate. Text messages, photos, and witness testimony could be used to prove how the property was used.
What Does an Equitable Distribution of Debt Look Like?
In some jurisdictions, property and debts are divided equally. That is easy to understand and predict. An equitable division, on the other hand, can sometimes seem arbitrary. What seems fair to one judge may be different than what seems fair to another. Making the most persuasive argument becomes essential.
When deciding on a fair allocation of debt, the court would typically consider factors such as:
- The reason for the marriage ending (did one spouse cheat or behave abusively?)
- Does one spouse earn a lot more income than the other?
- Is one spouse responsible for caring for dependent children?
- How long did the marriage last?
The specific circumstances involving the particular debt will also be a determining factor in how that debt is allocated.
An Experienced Divorce Attorney Can Help You Reach the Optimum Allocation of Debts in Divorce
Your side of the story should be heard and taken into full consideration when it comes time to allocate debts in divorce. Whether you are negotiating settlement terms outside of court or making your best case before the judge, the skilled legal team at DiPIetro Law Group, PLLC knows how to help you reach your goals. Schedule a confidential consultation with us to learn more about how we can assist.