Division of Debt
Florida Divorce Attorney
When a couple divorces, they must divide their marital property, both assets and debts. Ideally, the spouses will be able to come to an agreement on how to split their property, but if not, the court will divide it. The division of debt in a divorce can come with some unique issues, so if you are considering a divorce, you should contact an experienced family law attorney today to advise you on the effects of your debts in a property settlement.
Under Florida law, a divorcing couple’s property is divided under the rules of equitable distribution. Equitable distribution means that all marital property is divided equitably between the spouses. This does not necessarily mean equal distribution, however. Marital property includes both assets and debts.
Marital debt is any debt incurred by either spouse during the marriage, prior to filing for divorce. Whether both spouses’ names or only one spouse’s name is on the loan documents, credit card accounts, etc., is not relevant to a debt’s classification as marital property. Even hidden debts that only one spouse is aware of may be marital debts. Marital debts may include:
- Credit card debt;
- Car loans;
- Student loans;
- Home equity lines of credit; and
- Any other type of loan.
Nonmarital debt is any debt incurred by either spouse prior to the marriage, even if the debt remains unpaid after the marriage. Additionally, spouses may designate a debt as nonmarital by signing a written agreement to that effect.
In some cases, a debt incurred during the marriage may be considered to be dissipation of marital property. To show that a debt constitutes dissipation, a spouse must show that it was incurred for a purpose not in furtherance of the marriage, for example, for an extramarital affair, or to support a gambling or drug habit. If a debt was incurred after the marriage began to break down, this can be evidence that it constitutes dissipation. If a debt is considered to be dissipation, then it may be assigned to the spouse who incurred it, without the need for any offsetting debts to be assigned to the other spouse.
The amount of marital debt that a spouse takes on after the divorce may affect alimony payments. If one spouse takes on a disproportionately large portion of the debt after divorce, that spouse may not be required to pay as much alimony to the other spouse.
If the spouse assigned a particular debt defaults after divorce, this can create serious problems for the other spouse. If the debt was originally incurred in both spouses’ names, such as in a shared credit card or a mortgage, the creditor can go after the other spouse, even though the court assigned the debt to the first. This is because a Florida divorce is not binding on a creditor, and does not supersede any creditors’ claims. If possible, a couple should, after a divorce, have debts reassigned to only one spouse, for example, by refinancing a mortgage.
If you are considering a divorce and have significant debts, an attorney’s advice is especially helpful. Please contact West Palm Beach family law attorney William Wallshein for an initial consultation.