debt division

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“After the real estate crisis beginning in 2008, many divorcing people were fighting over which party had to take the debts or who had to pay the monthly Chapter 13 bankruptcy obligation.”


                                                                                                                   Tamela Adkins



Georgia law requires that the debt or liability of the marriage should be divided equitably.  To evaluate what an equitable division of the marital debt of the marriage, a judge or jury will determine the following questions:


A. What are the “debts of the marriage”?

B. What does ”equitable division” (or fairness) mean in your particular case?


“Debts of the marriage” are loans, credit cards, and margined stock accounts that were created during the marriage by either party.  In Georgia, the most important thing to remember about liabilities when you divorce is that it does not matter which spouse incurred the debt.  It also does not matter if you had knowledge (or lack thereof) of your spouse incurring the debt.  

There are exceptions to this bright line rule.  Here are a few...


A.  Student Loans:


For instance, many judges will consider student loans that originated during the marriage to be apportioned to the spouse who received the education.  However, if the parties used any of the student loan for marital expenses....such as to pay utilities, mortgages, etc....then the student loan most likely would be classified as a marital obligation.


B.  Personal Debts:


For instance, if your spouse racked up $50,000.00 in gambling debts during the marriage without your knowledge and it is the reason for the divorce, most likely it would not be considered marital debt.


Another frequent example is when your wife had elective plastic surgery during the marriage, such as breast implants that were financed through an agency such as Care Credit. Most likely your wife would be required to take that liability (along with her implants).


Suppose your husband racked up $15,000.00 in hotel charges to spend time with his mistress.  That debt would typically not be classified as a “debt of the marriage”.  


C.  Secured or Collateralized Liabilities:


For instance, if there is a joint note obligation on an automobile and your spouse takes that vehicle upon the divorce, the debt follows the car.  A judge cannot require a finance company, such as Ford Finance, to change the note that you and your spouse signed jointly.  However, a judge can require and most often does require the spouse taking the car in the divorce to make the monthly payments on the joint note.  


As you can see by just these three examples, classifying a debt as either “marital” or “separate” is a complicated component in many divorces.

  

“Equitable division” means a division of debt that is fair.  That determination is made by a judge or jury if you and your spouse are unable to agree.  Equitable division does not mean 50/50, although most judges start from that point.

 

To determine what is an equitable division of debt, a judge or jury may consider many factors.  


Factors that may be important are:


  •  Each spouses income;
  •  Which spouse incurred most of the debt or;
  •  Was the debt incurred for the benefit of the marriage or family. 


Frequently asked questions

Q: What if my spouse had debt prior to our marriage?

A: Any debt that you can prove was “pre-marital” would not be considered marital debt subject to division. For instance, if your husband had a Citibank Visa in his individual name with a balance of $30,000.00 on your wedding day and his Citibank Visa has a balance of $50,000.00 at the time of the divorce - $20,000.00 would be considered marital debt.  Be careful though, because if you paid off the $30,000.00 Citibank Visa during the marriage through a refinance of the marital home and then later during the marriage he ran the Visa up to $50,000.00 again......all of the debt is probably marital.  


Q: Is unsecured debt offset by property settlement?

A: Yes, if your spouse is taking all of the debt...a judge or jury may offset the  debt against an asset. For instance, if all the marital debt is in your wife’s name and she assumes all debts in the divorce, let’s say $50,000.00, then you might not collect half of her $100,000.00 retirement account that you would otherwise be entitled to receive and would instead receive only $25,000 from your wife's retirement account as an offset to the debt.

  

Q: Does credit card debt affect my child support? 

A: No, currently the division of debt has absolutely no effect on child support.


Q: Does division of credit card debt affect any other part of my divorce?

A: Possibly if your spouse created $50,000 in debt during the marriage and you only created $10,000, the judge or jury may award your spouse more of the debt as an equitable division. However, if your yearly income is double your spouse’s earnings, the judge or jury may award a higher share to you.