When a couple divorces, debts as well as property must be equitably divided
Marriage can be likened to a business contract, and when that contract is dissolved during a divorce the division of assets is an important and often contentious matter. But debts are an equally important matter to resolve when any contract, including marriage, terminates, as any debts a couple holds will also be allocated between the erstwhile spouses.
As with marriage assets, the apportionment of debts can be a complicated and quarrelsome process. But the first factor in any division of debts is whether the state that has jurisdiction over the proceedings is a community property state, as nine states are, or a non-community property state, such as Virginia and Maryland.
In Virginia, one of the 41 states with an equitable distribution law for dividing property and debts, specific guidelines determine the division of debts upon the dissolution of a marriage. Virginia law mandates that the following issues be resolved in order to make a determination on debt division: the classification of debts as marital or separate, the valuation of debts and the equitable division of any debts based on statutory factors from the Virginia Code.
The debt classifications can be defined in two ways. Marital debts are acquired by either spouse from the date of marriage to the date of separation. Conversely, separate debts are accumulated prior the date of the marriage or after the date of separation by a specific spouse in his or her own name.
But a few types of debts fall into a gray area, such as those acquired during a marriage for which a creditor eyed the separate property of one spouse for payment, or those acquired prior to a marriage in one name for purposes that are specific to the marriage.
In Virginia, valuation of marital property is generally the date of the evidentiary hearing or trial, while valuation of debts is based on the date of separation.
Courts in Virginia employ various factors from the Virginia Code to determine the equitable division of debts. However, equitable division does not necessarily translate into an equal division because a court takes into consideration case-specific variables that may be salient in determining how debts, as well as property, should be fairly divided.
While property and debt division can be a troublesome matter to navigate, an experienced divorce attorney can help guide a spouse seeking or facing a divorce through the issues involved, as well as chart a course that is as stress-free and cost-efficient as possible.