How are our debts divided during a divorce?

This is a freelance article from Gemma Herbert

Psychologists note that a divorce is one of the most stressful life events a person can undergo in both an emotional and practical/financial sense. Divorce often places economic strain on individuals, since most couples take out various loans, including mortgages, car loans, credit card loans, etc. When divorce comes around, it can be difficult to decide which partner is responsible for which debts (or parts of debts). Another difficulty arises when one partner refuses to pay debts a court has deemed them responsible for.

Division of Property and Debt in Virginia

Since Virginia is an ‘equitable property state’, all property and debt acquired during the marriage should be equally divided between spouses upon divorce, unless they have agreed otherwise or unless the court finds that equal division would be unjust.

The Court carefully analyzes all property owned by the couple, assigning each spouse with a particular percentage of the total value of the property and debts. Consideration is always given to monetary as well as non-monetary contributions made by each spouse. Often, two thirds of the property will go to the spouse who earns a higher wage, and one third will go to his/her spouse. In states subject to community property rules, both spouses typically divide any property acquired during the marriage 50-50. 

Equitable Distribution: Considerations Made by the Court

The Court takes a number of factors into account in an equitable distribution divorce, including:

  • How long the marriage lasted.
  • The income and future earning potential of each spouse.
  • The health and age of each spouse.
  • The standard of living enjoyed by the family during the marriage.
  • The childcare provided during the marriage.
  • The value of the investment one spouse made with the other’s education.

Marital vs Non-Marital Property

The distinction between these two types of property can sometimes be difficult to assess though as a general rule, marital property includes all earnings made during the duration of the marriage, and anything accrued with those earnings.

Any debt incurred during the marriage is usually classified as marital property, unless the lender was looking to one spouse’s independent property as a potential source of payment.

Non-marital property, on the other hand, includes damages for personal injury, property acquired with one spouse’s separate funds which remain the property of that spouse, inheritances, gifts, businesses owned prior to the marriage, etc.

With respect to businesses, if a spouse can show they have helped increase the value of their spouse’s business during the marriage, a percentage of the business may be considered marital property.

Finally, any property bought with a mix of marital and separate funds is classified as part marital and part non-marital property. When non-marital property is mixed with marital property, it is generally classified as marital property.

The marital home is often a bone of contention, with the person providing primary care for any children having the right to live in the home. If there are no children and the home is in the name of one spouse, that spouse may have the right to ask the other spouse to evacuate the home. If the home belongs to both parties, they may decide to sell the house and divide any profits made, in the percentage ratio decided by the court.

Enforcement of Unpaid Debts

Once the Court decides which party is responsible for particular debts (or the degree to which each spouse is responsible), trouble can occur if one spouse fails to meet their obligations to pay debts. If this occurs, you can petition the court to enforce the agreement; your spouse will have to explain why they cannot honor the debt as ordered, and they may have to face fines or imprisonment. Some spouses choose to pay debt then request reimbursement from their spouse. Although legal advice is crucial in these cases, a good general rule is to try to pay all debts during the divorce, so you can work on building a better future instead of dwelling on the past.

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Further reading

Booth and P. Amato, Divorce and Psychological Stress. Journal of Health and Social Behavior, Vol. 32, December 1991, 396-407.

American Psychological Association, Healthy divorce: How to make your split as smooth as possible, accessed January, 2016.

Q, Debt Help, accessed January, 2016.

Forbes.com, Understanding How Assets Get Divided in Divorce, accessed January, 2016.

Social Science Research Network, The Equitable Distribution of Marital Debts, accessed January, 2016.

Floridabar.org, A Seven-Step Analysis of Equitable Distribution in Florida Part 2: Distributing Marital Property, accessed January, 2016.

Eisneramper.com, Who Gets What?, accessed January, 2016.

Edrie Pfeiffer
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Edrie Pfeiffer, Bankruptcy & Divorce Attorney