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  • John C. Whitbeck, Jr.

    Partner

    John C. Whitbeck, Jr. practices in the following areas of law: Family Law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Mediation, Arbitration, Relocation Cases, Domestic Violence, Criminal Law, DUI/DWI, Reckless Driving, All Felonies, All Misdemeanors, Juvenile Crimes, Mental Health Law, Civil and Business Litigation, Construction Litigation, Education Law, Election Law, Debt Collection, Consumer and Lemon Law.

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  • Ruth M. McElroy

    Partner

    Ruth M. McElroy practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Pre and Post Marital Agreements, Domestic Violence, Reckless Driving, DUI/DWI, Juvenile Crimes, Felony and Misdemeanor Crimes, Traffic Offenses, Debt Collection, Civil and Business Litigation. She serves the Virginia Court system as a Guardian ad litem.

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  • Jennifer D. Cisneros

    Partner

    Jennifer D. Cisneros practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Domestic Violence, Juvenile Crimes, Reckless Driving, DUI/DWI, Estate Planning, Wills and Probate, Trusts, Civil and Business Litigation and Debt Collection.

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Dividing Marital Debt in a Virginia Divorce

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During the course of your Virginia divorce, everything will be divided, which includes not only your assets, but also your debt. But, how is debt handled? What is considered marital debt and how is it determined? The division of debts in a marriage is handled in pretty much the same manner as assets. Virginia is not a community property state, so things are not split evenly down the middle. Instead, Virginia is an equitable distribution state, which means assets and debts are split in an equitable manner.

In a majority of situations, specific debts or percentages of debts are allocated to each party. The higher earning spouse may be ordered take a larger portion of the debt as there is an assumption that with his or her increased earning capacity, they are more easily capable of paying it off.  However, this is not always the case, especially where one spouse is solely responsible for incurring the debt. If you are going through an uncontested divorce, you have more flexibility as you are deciding on the terms of distribution. Everything is spelled out in a separation agreement that you create rather than the court rendering a decision on the method of distribution.

Marital Debt versus Separate Debt

Like assets, debts can be classified as marital or separate. Any debt that was incurred prior to the marriage is likely going to be deemed separate debt. It would not be divided during the divorce, and instead would be the responsibility of the person who brought it into the marriage.

If you came into the marriage with your own credit cards in your name, they are your responsibility. However, the accounting can get complicated because you may use marital funds to pay bills, and you may charge items that are the benefit to the marriage. This means the debt is revolving rather than disappearing. In some cases, you may be able to show you’re only responsible for debts before the marriage, not what was accumulated during the marriage.

Debt may also be declared separate if it was incurred after your last separation date, provided one of you intended the separation to be permanent. In addition, what you used your credit cards for can be important in determining the allocation of debt. Suppose you ran up your credit cards before the marriage for the benefit of the wedding. You paid for a wedding dress, tuxedo, etc. This would likely be determined to be separate debt.  However, the court can consider it as a factor in dividing other debts incurred during the marriage.

If your ex incurred debt during the marriage that was for non-marital purposes, he or she may be responsible for that debt even if it is technically marital. What the court ultimately decides is marital and separate property is what’s key. This is why you need to have plenty of evidence and present a convincing argument to the court that you are not responsible for the debts in question. This is why it’s so important to have a skilled divorce attorney on your side.

Retaining a Virginia Divorce Attorney

Although the courts technically allow you to represent yourself in a contested divorce, we strongly recommend you have an attorney on your side. If you have questions about asset and debt distribution during a divorce, or you need representation, contact Whitbeck Cisneros McElroy PC at 703-997-4982 today to schedule a consultation.

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