29 Jun Debt: The Marital Property No One Wants
Divorce proceedings often conjure up images of two bitter spouses fighting over every marital asset there is, from the house to the most insignificant items. Many people may have a basic understanding of what they can ask for in a divorce and what they believe they should receive. However, there is a lurking question that no one is eager to ask and even less eager to address: marital debt. Just because a marriage ends does not mean that the debt the married couple racked up magically goes away. Someone has to pay for that debt, and who ends up responsible for it is often as big of a fight as the fight for the marital assets.
Equitable Distribution in South Carolina Divorces
South Carolina is an equitable property state. This means that in the event of a divorce, the courts will seek to divide the marital property in an equitable or fair manner between the spouses. Dividing marital property equitably does not necessarily mean that it will be divided equally. The court will decide what is fair based on a set of factors, taking into account all relevant facts to determine what will qualify as an equitable distribution of the wealth in a marriage.
Marital Debt is Marital Property
Before the court can divide marital property, it must first determine what property is marital property. Marital property is property that belongs to the marriage, that is, to both spouses. Marital property is property that is acquired during the marriage, regardless of what the title to the property says. Other property that may have originally belonged to one person before the marriage may eventually become marital property if it is used for the common benefit of the marriage or shared with the other spouse.
Typically, non-marital property is property that is considered belonging to only one spouse. The most common example of non-marital property is a family inheritance or gift that one spouse receives from his or her family line. Other non-marital property might be jewelry that has been passed down through a family line, intangible property like investments and personal property like clothes or cars.
Just like how assets can be considered marital or non-marital property, so can debt. Non-marital debt is debt that one spouse entered into the marriage with, such as student loans or personal credit card debt. Marital debt is debt that the marriage acquired, usually a mortgage, home equity loans, car loans or medical bills. The court is tasked with splitting marital debts just like marital assets at the time of a divorce.
Equitable Debt Distribution
In determining how much debt a spouse will take on in a divorce, the court will look at all relevant factors to determine what a fair distribution is. Generally, the court looks at which spouse racked up the most debt, whether one spouse was responsible for accumulating more debt than the other, whether one spouse engaged in financial misbehavior, the relative earning strengths of each spouse, the future earning capacity of each spouse, and whether or not a spouse will be the primary custodian of the children. Many courts will also consider which spouse if any will remain in the marital home. If one spouse remains in the marital home it is generally the case that that spouse will pay for the mortgage.
Get Representation Now
Divorces can be messy and complicated. A spouse that is not represented by an experienced divorce attorney can find their futures unfairly burdened by a negative divorce decree. The attorneys at Klok Law Firm LLC in Mt. Pleasant, SC have years of experience representing individuals going through divorce and can give them the best chance at a positive outcome. Contact us today.