Virginia law states that both parties in a divorce are entitled to an equitable portion of property, as well as debt—this is known as equitable distribution. While this may seem straightforward initially, “equitable” distribution in legal terms can become quite complex.
The division of marital debt is approached in a similar way as the division of property, and the two can often be intertwined. In other words, the value of the debt and the value of the property granted to each party are both factors that are used to determine the overall fairness of a settlement agreement.
Much like with property, debt is not divided by the court unless this interference is requested by either party. As a result, in many cases, couples are able to negotiate marital debt division independently or with the assistance of a family law attorney. If an agreement cannot be reached during the initial negotiation phase, however, one or both parties may ask the court to facilitate the process. In these instances, a variety of factors may influence the outcome of the settlement.
In the courtroom, equitable division of property or debt can be influenced by:
- The income amount of each party
- The length of the marriage
- Who is considered most “at fault” in events leading to the separation
- Specific details pertaining to how property or debt was acquired
- Taxes, loan interest, and other obligations that may influence each party’s financial bottom line
- The ratio of which each party contributed to the acquisition of property or debt
- The overall mental and physical state of each party
This equitable approach is intended to divide property and debt fairly so that each party is equally able to support himself or herself following a divorce. This could mean that property is physically divided to an equal degree. However, in many cases, more value is awarded to one party than the other.
Which Types of Debt Can Be Included for Consideration?
Debt accrued during the time of a marriage is usually distributed equally between both parties, regardless of whose name the debt is under—unless proof is provided to support a non-marital debt classification. Examples of debt that may be equitably distributed in a divorce include:
- Student loans
- Automobile loans
- Credit card debt
When Is Debt Excluded?
Debt that was accrued before or after a marriage is typically not considered to be marital debt in Virginia. However, if it can be proven that the debt was acquired to benefit the marriage, the obligation may still be considered marital debt.
What if Children Are Involved?
When children are involved in a divorce, the party that spends the most time with them typically requires more resources to support the household. This may be an influential factor when considering the amount of property or debt awarded to each party in a divorce settlement.
How a Family Law Attorney Can Help
Establishing the value of marital property and defining equitability can be a complex process involving much negotiation and foresight. An experienced family law attorney can help you evaluate the true worth of your marital property and the extent of your family’s debt. Furthermore, he or she may be able to identify unforeseen consequences, such as property tax or moving expenses, and argue your case to ensure that the most equitable and fair arrangement is made. A family law attorney may also serve the role as a negotiation “coach” to guide you through the decision-making process.
If you have decided to divorce, you need an experienced family law attorney to help you understand the legal process, walk you through the issues you need to consider, and advocate on your behalf. Are you ready to get started? Contact our office today to schedule a consultation.