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Is a Divorcing Spouse Liable for the Other’s Debts?

Jun 26, 2023 | Divorce, Divorce & Retirement Assets

Divorce can be a difficult time. You and your former partner may have many things to navigate, from the equitable division of assets to child custody.

Marital debts, in particular, can be a stressful subject. If one spouse has incurred more debt than the other, who’s responsible for debt in divorce? Will you need to pay off debts you didn’t incur?

The answer may certainly depend on the state law governing your divorce proceeding.  

West Virginia Equitable Distribution Law

In certain states — known as community property states — marriage means that your and your partner’s lives and assets are completely intertwined. Any property that you buy or debts you incur belong to both of you as a unit.

West Virginia law provides generally that any debt acquired during the marriage is a marital debt and is subject to be equally shared by both spouses irrespective of which spouse incurred the debt and whether or not the debt is in the name of one or both spouses. 

There are exceptions to this general rule for debts that are deemed to be debt incurred   totally outside the scope of any marital purpose.  Example of this might be debt incurred for illegal conduct like loans taken to support an illegal drug habit or for habitual gambling.  Also, often times student loan debt that was incurred for tuition is sometimes treated as the separate debt of the spouse who received the education benefit of that student loan.  If, however, a portion of the student loan was utilized for living expenses during the marriage then the court may treat that portion of the student loan as a marital debt.    

There are other exceptions that may apply to debt incurred during the marriage. For instance, debt owed to family members of either spouse will be closely scrutinized to determine whether there exists a true expectation of repayment to the family member who loaned the money or was it a gift.  

There are many complexities to the division of marital assets and debts and you should consult a qualified family law attorney to discuss your particular facts before entering into agreements to divide marital assets and debt.  

How to Avoid Unnecessary Debt

You may wish to consider entering into a valid prenuptial agreement which is another exception to avoid the equal division of debts incurred during the marriage.  These contracts specify what should happen should you and your partner divorce. You can use them to dictate how certain property and debts are to be divided.

Postnuptial agreements offer similar benefits. Much like prenuptial agreements, they help courts determine how to handle matters during a divorce; the primary difference is that you create your postnuptial agreement after marriage, not before.

A qualified attorney can walk you through the process of creating either of these contracts. In addition, they can provide advice on how to navigate debt division should you not have any agreements in place.

Request Assistance with Your Divorce

Dividing debt in divorce can be as stressful as dividing other marital assets. While you shouldn’t be held accountable for your spouse’s debt in West Virginia, you may still face many other struggles. At Arnold & Bailey, we can help you navigate the divorce process and determine how to divide your assets and debt. Consider calling 304-725-2002 or filling out the contact form today to speak to an attorney.