Dividing Debt Between Divorcing Couples
Getting a divorce can have a disastrous effect on your finances; in fact, it is among the leading reasons stated by people who declare bankruptcy across the country. While it is common to hear those who are involved in a divorce talk about getting their fair share in the division of assets—such as the house, cars, and anything else owned in common—it is less common to hear about the equally important division of debts.
Don't let your divorce wreck your financial stability! Contact Henrickson & Sereebutra for a completely free consultation with our Marietta divorce attorneys. We can represent your best interests throughout the process of ending your marriage and can work diligently to see that you are not left paying for your former spouse's debts.
How is debt divided in a Georgia divorce?
The divorce courts in Georgia follow the principle of equitable distribution, which seeks to divide marital property according to what is fair rather than what is equal. For example, if you and your spouse share $100,000 debt, you will not automatically be ordered to pay $50,000 of it. Instead, you might end up paying more than half—perhaps significantly more—if your spouse demonstrates that you are primarily responsible for the debt, such as through excessive credit card use, medical expenses, or gambling debts.
Similarly, you could avoid paying some or all of the debt if you can prove that your spouse owed the money prior to your marriage. The determination of who pays how much of the debt is largely up to the discretion of the judge; therefore, it is highly advisable to hire a family law attorney who is capable of making a persuasive argument on your behalf to help you avoid being left with an disproportionate share of the debt.
To learn more about the process of debt division in Georgia, and how it may affect your case, read answers to common questions below!
What Is Marital Debt?
Unlike property, which can be categorized as marital and non-marital, all debts acquired during the course of the marriage are "marital debt." Even if you acquired debt under your own name (ex: you took out a credit card alone), it would still be considered marital debt. For Georgia courts, the only concern is determining what debts were incurred after the marriage vows. Any debts that were in your name prior to the marriage will remain your sole responsibility; your spouse will not have to help pay for them.
Are Secured Debts Treated Any Differently?
Secured debts are those backed by some kind of collateral. So, a mortgage might be an example of a secured debt, whereas debt from credit cards would be considered unsecured. This matters as the courts may treat secured debts differently depending on the other circumstances of the divorce. For example, if you decide to keep the house after the marriage, you become solely responsible for the 'debt' of the mortgage. If you intend to keep possession of the collateral, you will need to refinance.
What if I Want to Pay off My Debts?
Often, couples will take the opportunity of divorce to reorganize their finances. In some cases, the courts may allow you and your spouse to eliminate the debt completely through the process by selling off your assets to pay them off. This way, both parties can have a fresh start.
How Will Debt Division Affect Creditors?
It is crucial to remember that divorce orders do not overrule contract law. So if your debt is in both of your names and the court orders it to be split 60 / 40 between your spouse and you, the creditors still have the option of coming after you if your ex-spouse fails to make their payments.
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Accurately determining who is liable to pay certain amounts can be challenging, particularly in a marriage of long duration where the spouses financial affairs have become extensively intermingled. You therefore may need to work with a professional financial advisor or accountant. In more complex cases, it may even be to your advantage to avoid having the judge intervene in the matter by pursuing mediation or even a collaborative divorce to achieve an out-of-court settlement.
For further help with your case, please contact our Marietta divorce firm.