Marital Debts: How To Divide Them Fairly

Posted on: 1 April 2015

In the event of divorce, many changes will take place regarding the even division of property. Not the least of these concerns is the equitable division of marital debt.  During the course of a marriage, it is likely that certain debts will be accrued over time, whether from taking out loans and mortgages or through other means. Separate debts or those acquired before the marriage, will not be divided. Usually, a fair division of these debts leaves both parties with an equal share of them, but in some cases an unequal division may be considered fairer.

Arbitrating Division

Sometimes the division of assets and debts can become, well, divisive, especially at a time when tensions are already running high between two parties. Legally, the couple can agree to any division of assets as they see fit. However, if an agreement cannot be reached, or if their financial situation is particularly complicated, a divorce lawyer can be a great help.

A divorce lawyer can help both parties navigate around common pitfalls and handle issues that may otherwise be overlooked. They will make sure that you come to an agreeable solution regarding the division of these marital debts. If the parties cannot come to an agreement, the court will be forced to divide the debt for them.

Usually, these decisions are based on factors such as each spouse's financial situation, earning potential, childcare costs, length of the marriage, and responsibility for the divorce. They will also take into account any additional factors unique to your case. It is usually better to decide for yourselves rather than letting the courts decide. This way, you will know what to expect and will have some say in the decision before being legally bound to it.

Special Cases

In general, all debts acquired during the course of a marriage are considered marital debt, regardless of who made the purchase. Common exceptions to this rule include gambling debts, money spent on extramarital affairs, money spent on legal fees in a criminal case, and occasionally student debt taken on during the marriage.

An unequal division of marital debt may be recommended in cases where

  • One spouse is considered more at fault for the marriage ending
  • One person can pay more
  • One person is found to be more at fault for the debt

In some cases, one party may take on more debt as a result of being granted more property, as debts related to property ownership usually stay bundled with that property. In cases where only one person can afford to pay the debt on a property, that person is often awarded the property because of this bundling.

The division of marital debts can be a simple process or a headache-inducing one, depending on the complexity of your financial situation and ability to get along with your former spouse. In either of these cases, a divorce lawyer or mediator like Tolman Kirk Clucas PLLC can be a great help in finding a fair solution and making it binding. They will be able to give your case personal attention and make recommendations for the best outcome, which is certainly better than taking your chances in court.