Am I Responsible for My Spouse’s Debt After Separation?

Key Takeaways

• The Commonwealth of Virginia follows equitable distribution principles, which means that marital assets and marital debts are split fairly, but not necessarily 50/50.
• Courts allot marital debt to each of the parties as a part of the equitable distribution process.
• A court will classify what portion of the parties’ debt is marital, what portion of the debt is separate, and what portion of the debt is hybrid to determine how much of the debt each of the parties is responsible to pay.
• Working with an experienced family law attorney can help you avoid paying for your soon-to-be-ex-spouse’s separate debts.

Separating after building a life together is hard enough to process, but factoring in issues such as custody, support, and division of property adds layers of complexity. Many couples don’t know that in Virginia, debt is considered property for divorce purposes. In fact, debt is one of the most common contested issues in a divorce.

It is normal to worry that your ex’s debt will follow you around after separation. Whether it is credit card debt, car loans, or student loans, you do not want the burden of any debt you did not create, and you especially do not want that debt to impact your credit.

Because Virginia follows principles of equitable distribution, courts divide assets and debt by what is fair, not necessarily by what is equal. The family law attorney at Montagna Law can assist you through this difficult process and help you protect your finances.

What Debt is Considered Marital Property?

Virginia classifies debt as marital property so categorizing each of the parties’ debts as separate, marital, or hybrid is paramount to ensuring that you are not responsible for debt that is not yours. Ultimately, the court will determine the category of each debt, but complete and correct information must be presented to the court to ensure your desired outcome.

Although each case and each debt is unique, usually Virginia courts observe the following rationale:

• Debt incurred before the marriage is typically considered a separate debt and belongs to that person
• Debt incurred during the marriage and for the benefit of the family is usually considered marital debt and needs to be divided between the spouses by the court
• Debt incurred during the marriage but not for the benefit of the family (e.g., gambling debt, store credit cards for one spouse’s irresponsible spending on themselves, etc.) is typically considered that person’s separate debt
• Debt incurred after separation is likely considered that person’s separate debt
• Debt that is part marital and part separate (for example, one spouse took out a loan before the marriage but then both spouses refinance the loan during the marriage) is usually considered hybrid debt.

Note that the court does not typically consider whose name is on the debt but instead when and why the debt was incurred.

Understanding Equitable Distribution in Virginia

In a Virginia divorce case, the court uses principles of equitable distribution when making decisions about what is to be done with the parties’ debt. Equitable distribution allows the court to apportion the spouses’ debt fairly in an effort to not make one person responsible for the other’s independent financial choices that were not made to assist the couple or the family.

Do I Need to Make Payments on This Debt While Separated?

If you are the responsible party for a debt, it is critical to make sure that debt continues to be paid – even after separation – in order to protect your assets and credit. Your contract with a lender or creditor is a completely different issue from the court determining which person is responsible for a debt.

However, you will want to keep a record of any payments you make on these debts so that you can make the court aware and ask that your payments be considered to reduce the amount of that debt that you owe.

Can I Be Forced to Pay My Spouse’s Debt?

In Virginia, liabilities follow the same rules as marital assets – meaning that Virginia’s equitable distribution rules will be applied to divide all relevant assets and debts fairly, but not necessarily equally.

Although you may have to make payments on your spouse’s debt temporarily after separation, you will likely receive credit for these payments when the court considers other debts as well as assets.

What About Debt Incurred Before My Marriage?

Typically, any existing assets and debts one person acquired before the marriage are not considered marital property. If someone is in debt when they marry but then later divorce, their separate debt from before the marriage is not automatically converted to marital property.

Why Work With Montagna Law

The Montagna Law legal team brings many decades of experience to Hampton Roads. With extensive experience in family law matters, we understand this is an emotional time, and there will be many issues to address. The compassionate attorneys at our law firm care about you and what is best for your family.

Should you select Montagna Law to provide you with legal representation, you can expect us to diligently advocate on your behalf to ensure that the legal system treats you fairly and you do not get stuck with debt that is not legally your responsibility.

The attorney-client relationship is critical to our family law attorney. Montagna Law prides itself on delivering customer service to every client while applying our experience with and knowledge of Virginia law to each case.

Real Client Feedback

“My Attorneys at Montagna Law provided me with good sound legal [advice] with my case. If you need help with your case give them a call and see if they can help you.” — Michael D.

Let Us Take the Burden of Debt and Divorce Off Your Shoulders

If you are facing uncontested or contested divorce proceedings in Virginia, the attorneys at Montagna Law understand the pressures and uncertainty you face. Our divorce lawyer will provide you with objective legal advice to guide you and help you avoid making emotionally-based decisions.

Dealing with the division of property can be a difficult task in a divorce, and debt division may be one of the most contentious issues to address. Montagna Law’s divorce attorney has many years of experience handling asset and debt allocation.

To schedule a legal consultation with our office, contact Montagna Law at 877-622-8100 or fill out our online contact form.

Frequently Asked Questions

How Can I Be Removed as a Co-Signer?

The short answer is that unless you and your soon-to-be-ex spouse are able to agree on what to do with each loan, you will not be able to remove yourself from any debts until the divorce is finalized.

As part of the divorce process, often one party will refinance loans into solely their name – especially if that person wants to keep the asset associated with that loan. However, converting debts from a joint obligation to a separate obligation after separation can have unintended consequences. Therefore, your best option to protect your finances is to obtain competent legal advice about the individual facts of your situation.

Can My Ex Take Out Credit Card Loans While Separated?

Yes, but the loan date will show the debt was acquired after the date of separation. For instance, if your ex applies for credit cards and goes on a shopping spree after separation, the court will likely find that you are not responsible for this debt.