Debt Division and Divorce Process
Dividing debts is usually a key component in the divorce process in New Jersey. Even in amicable relations, approaches can vary.
Divorce is expensive. Not only do you split one household into two, but you also may have to pay other professionals to help you through the process in the best manner possible, like lawyers, accountants, and appraisers, for example. And if you ran up lots of debt during the marriage, expect to take on your fair share of the debt. In New Jersey, all assets and debts are split equitably or fairly upon divorce. That means a court decides who pays which debts based on law and equity. However, some debt belongs to one spouse or the other, depending on who incurred the debt, when, and why.
How is Debt Handled in Divorce in Wayne, NJ?
Like marital assets, some debts are separate and others marital. All debts incurred before marriage or after separation are individual debts of the person who incurred them. On the contrary, most debts incurred during marriage are marital debts. However, misappropriated or misused funds may be separate debts. For example, a court could decide that one spouse’s private debts for drugs, gambling, or other addictions are unauthorized, misspent funds that belong to the spouse who incurred them.
Similarly, if one party runs up a lot of credit card debt on a week-long shopping spree in anticipation of a divorce, they may have to pay the debt. In other words, a court equitably divides only debts incurred for the benefit of the marriage and typical of how the parties spent money during the marriage. So, if the spouse who ran up the shopping debt did not usually go on shopping sprees during the marriage, they may be liable for the debt.
Is The Nature of Debt Taken Into Account in the NJ Divorce Process?
Also, the character of the debt matters in allocating marital debts. For example, contractual debts in the names of both spouses are the responsibility of both spouses. So, mortgages and car loans in both names are marital debts. The spouses are jointly liable for them. However, one spouse can pay the car loan or mortgage if they intend to keep the asset. But since both parties are obligated to pay the loan, if one party defaults on the loan, the spouse who gives up the car or house will want assurance and protection. Thus, one spouse can refinance the mortgage in their name or get a new car loan to replace the existing one, so the other spouse is off the hook.
Alternatively, the spouse in possession of the car or house can sign an indemnification agreement, guaranteeing that they will make timely payments to the lender or indemnify the other spouse from all liability if they default. That means the indemnifying spouse assumes all responsibility for paying the debt and defending the other spouse in a lawsuit by the lender if they default. Alternatively, they can promise to sell the house or car to pay off the debt if they can no longer pay the loan. And as to joint credit cards, both must pay the debt. Typically, one spouse pays the credit card company when the bill is due, and the other reimburses the other or pays them in advance of the due date.
But credit card debts, medical debts, mortgages, car loans, and student loans that one spouse incurred before marriage are generally separate debts of that spouse. Although, it depends on the nature of the debt. For example, premarital debt incurred for the benefit of the marriage may be marital debt. So, a spouse who pays on their credit card for the household furnishings in anticipation of marriage and cohabitation may treat the debt as marital debt in a divorce. However, since both parties benefit from the household furnishings, one spouse should not have to pay for the debt incurred before marriage unless they agree to divide premarital costs. So, for example, if one spouse agreed to pay for the household furnishings and the other decided to pay for the honeymoon, each most likely must pay their premarital debt.
What Determines Who Pays the Debt when Divorcing in NJ?
In sum, the party’s intentions when they incurred the premarital debt determine who pays the debt. For example, the debt is joint if one party buys a house the couple expects to finance and inhabit. On the other hand, if one party treats the other to a trip to Hawaii before marriage, the debt is a gift from one spouse to the other and is a separate debt in divorce. Of course, credit card companies and mortgage holders do not care who the court orders to pay which debt. All creditors want is timely payment from the person whose name is on the contract or credit card. So, regardless of the court’s or the parties’ debt division, they must pay the creditors according to the agreement terms.
If they do not carefully spell out the allocation of debt and payment arrangements in a divorce decree, one or both spouses risk ruining their credit. As such, the obligated party often pays the obligation to save their credit or prevent lawsuits and then sues the other party for reimbursement in family court. Ensuring a fair division of marital debts can be tricky. If you are divorcing, you need the experience and know-how of an experienced divorce attorney who deals with property distribution and debt divisions all the time. The attorney you choose may advise you in the divorce planning stage to pay off the marital debt to eliminate the risk of relying on one party to pay their share of joint obligations during and after the divorce, especially if it is not amicable.
An attorney may recommend selling a marital asset or borrowing to pay off the marriage debt to reduce the risk of ruining your credit. It is highly preferable to consult with a family law attorney before you divorce, but certainly, after you or your spouse initiate a divorce.
Explore Your Debt Division in Divorce Options with Family Law Attorneys serving Clients in Hudson, Bergen, Passaic, and Essex Counties
At Montanari Law Group, we are dedicated to assisting you with navigating all of the legal, financial, and family-related hurdles in the divorce process. Our divorce team can help you find ways to make a clean break, or as close as to one as possible, without lingering obligations.
Your future financial health may depend on what happens in your divorce. Call a family law attorney at our Little Falls office for assistance right away. We serve clients on Paterson, Pompton Lakes, Totowa, Ringwood, Jersey City, Hackensack, Newark, and places across Northern New Jersey. We are prepared to discuss the complete picture of your assets and debts if you choose to schedule an appointment with us to go over your particular divorce situation. Even before that, call (973) 233-4396 or contact us online to receive a cost-free initial consultation and begin demystifying the process of handling debts, assets, and more in your divorce case.