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Dividing the Property in a Virginia Divorce: The Debt

Similar to the division of assets, the division of debts is also an important factor for the court to consider in any divorce. This article goes over the general rules regarding classification and division of debts.

Debt Classification

Just like with assets, the court has the task of classifying debts as marital or separate. The debt classification rules, like the asset classification rules, are in Virginia Code § 20-107.3(A).

Generally, separate debt is

  • all debt incurred by either party before the marriage” and
  • “all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent”. (Note: Since the statute repeatedly references this date, always using this same long language, the rest of this article will refer to this date as “the date of permanent separation.”)

Generally, marital debt is

  • “all debt incurred in the joint names of the parties before [the date of permanent separation], whether incurred before or after the date of the marriage” and
  • “all debt incurred in either party’s name after the date of the marriage and before [the date of permanent separation].”

However, if one party can prove that at least part of an otherwise marital debt was incurred, or that at least part of the proceeds of the debt was used, for a non-marital purpose, the court may designate the entire debt as separate, or it may designate part of the debt as marital and part as separate.

Debt Division

Like separate property, separate debt generally remains the debt of the party incurring the debt. The same factors utilized in asset division are also applicable for division of debt. However, one special rule is worthy of note: As part of equitable distribution of jointly owned marital property, the court may permit one party to purchase the other party’s interest in the property, provided that the buyer agrees to assume any debt secured by the property (e.g., a mortgage on the house or a loan for which the house is collateral).

Just like with marital assets, understanding how a court is likely to will deal with marital debts will help you come to a fair resolution of the matter, either by settlement or litigation. As there are many nuances to equitable distribution of debts as well as of assets, it is always wise to consult an attorney to help you apply the statutes to debts that will be considered in your divorce.

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