Division of Debts
When a couple is divorcing, any debt accumulated over the course of the marriage must be divided between the partners. If at all possible, all debts should be paid off before divorce proceedings begin. This is the best way to assure a clean financial break from a former spouse. If this is not a possibility, debts are considered property and must be shared. In the state of New York, debt is not necessarily divided equally, but rather equitably.
While dividing marital debt, a judge will likely consider:
Premarital agreement – if an arrangement for distribution of debt was agreed upon before marriage it is likely to be upheld by a court during a divorce. However, if the couple accumulated an unusually large debt during the marriage, one spouse might still be able to contest the previously agreed-upon distribution as inequitable under current circumstances.
How the debt was acquired – if the debt was acquired to mutually benefit both spouses, such as to purchase a home, car or family vacation the debt is shared by both parties. If the debt was acquired to benefit only one spouse, such as for the purchase of sporting equipment or to finance one spouse's graduate studies, the debt is likely to be assigned to the spouse that benefitted.
Financial situation of each spouse – in dividing debt a judge might consider the income, assets, earning potential and living conditions of each partner.
Even if the court determines that one spouse is financially capable of paying off his or her share of a mutually acquired debt that does not guarantee that the spouse will live up to the obligation. When agreeing to take on a share of debt it is a good idea to ask your attorney to integrate some safeguards into your agreement so you do not become obligated to pay off your ex-spouse’s share of a debt.
If you are divorcing and share debts with your spouse, including mortgage, credit cards or car loans, consult a divorce attorney. Call the Buffalo Law Offices of Randy S. Margulis and Associates at 716.886.9600 or contact us online.