Dividing debts can be a complicated part of divorcing, but Virginia is one of forty states that operates under an equitable distribution law, according to the Virginia State Bar (VSB). For this reason, it’s important to understand how separate and marital property categorizations under equitable distribution affect how the courts divide debt between two divorcing spouses.
The Difference Between Separate and Marital Debts
The process for dividing debt is similar to dividing property. A divorcing couple first has the opportunity to attempt an arrangement for dividing their debt. However, if they cannot find common ground, Virginia courts categorize debts into either separate or marital property, which are defined below:
- Separate. This includes any debt acquired before the marriage, after separation, or through individual means and kept wholly separate from marital funds.
- Marital. This includes any debt acquired after the start date of the marriage and before the official date of separation. Also, any debt acquired and paid for with marital funds counts as marital. Finally, any debts made jointly are also considered marital.
- Hybrid. In some cases, debt may be considered both separate and marital, and this form is known as hybrid. For example, a debt acquired before the marriage but paid down with marital funds during the marriage may be eligible for division.
It’s important to remember that only marital and hybrid debts will be subject to division. Any debts the court deems separate stay solely with their respective debtors. Additionally, any debt accounts opened with marital funds, even after separation, will be subject to division by Virginia courts
Deciding How to Divide Debts
After legally valuing debts as separate or marital, Virginia courts use equitable distribution to divide debt, meaning a judge considers what is fair, but not what is a 50/50 split. In determining fairness, a judge considers factors including:
- Monetary and non-monetary contributions to the well-being of the family
- Contributions to the acquisition of each debt
- The duration of the marriage
- How the marriage dissolved
- Liability for any debts
- Tax consequences to each party
- Circumstances under which debts were acquired
- Other factors the court considers pertinent
Find Trustworthy Help With Your Debt Division
If you’re going through a divorce and have questions about how the courts may divide debts between you and your former spouse, we can help. The legal team at Tavss Fletcher has been helping clients like you for decades. To speak with a representative, start a live online chat on our website today.