Divorce Law Blog

Posts Tagged ‘Debt’

As the American economy has spun through major changes and debt has mounted for many American families, the issues involved in debt and divorce are escalating and taking an ever bigger role in divorce proceedings. Divorcing clients often face short sales or foreclosure of their homes; educational loans, credit card debt, and mortgages; and sometimes even bankruptcy.

What are some of the key issues in a Massachusetts divorce case regarding joint liabilities? Generally, debts and liabilities fall under the larger umbrella of property distribution. And in Massachusetts, property division must be equitable, but not necessarily equal: that is, fair to both parties, given differences in each party’s debt load and property value.

Although it may sound overly simplistic, there are only a few main options:

1. Pay It Off
Where possible, paying off joint debt prior to finalizing the divorce may provide closure and making a fresh, clean start after the divorce, as well as protect the credit ratings of both spouses. While the economics of the situation may seem insurrmountable, possible means of paying off joint debt could include sale of proceeds from the marital home, sale of other assets such as a second home or other valuables, or with liquid savings. Doing so allows both parties to leave the marriage with less debt, making a clean start minus that financial entanglement with your ex.

2. Split Debt
For debt which cannot be paid off as above, the next best option is to split the debt equitably, with one spouse taking responsibility for some debt and the other spouse for other debt. For example, one spouse could take responsibility for VISA debt and the other for MasterCard. However, an important caveat is that, if the two spouses were originally mutually responsible for the debt, if one defaults, then while that spouse may be in contempt of court for violating the terms of the divorce, the creditors could still legally go after the other spouse for payment.

3. Ongoing Joint Responsibility
In this case, both parties remain responsible for the debt, and the debt load is shared between them after the divorce. Again, in this case each ex-spouse may still be legally responsible for debt payment if the other defaults.

4. Bankruptcy and Credit Consolidation/Counseling
An experienced divorce attorney should have some basic understanding as to whether bankruptcy or credit consolidation/counseling are possibilities in your particular situation. Bankruptcy is a major event and should not be entered into lightly. Discuss these options with your attorney to see if they apply to your case.

5. Other Creative Options
Depending upon your individual circumstance, there also may be other viable alternatives which an experienced attorney can identify.