Divorce and Dividing Debt – Orange County
In a perfect world, separating couples would work out a division of their debts that they both believe is fair. The general rule is that all debts incurred during marriage is community (joint) debt, regardless of whose credit card or account the debt is found. This will often have a disproportionate effect on the spouse that makes less income.
When the parties divide their debt, they should come up with an agreement that divides everything fairly and equally, so that each party ends up with roughly the same value debt. By doing so, an actual division of debt or accounts may not physically occur, but an equal division of the value of the debt should occur. However, until a judge enters an order ratifying the agreement, your community debt still belongs to both of you and does not become separate, even if you have agreed on how to divide the debt.
In order to start dividing your debts, you should begin by making a list of all loans and debts you and your partner have acquired and currently owe. It’s a good idea to write your list down in a spreadsheet or somewhere easily accessible again, as the list will be extremely useful in completing a key Court form needed for your divorce. That form is the FL-142, Schedule of Assets and Debts that each party must exchange as part of their Preliminary Declaration of Disclosure as required by Family Code § 2104.
It is important to remember when dividing debts, that does not entirely free you from liability regarding that debt. For example, when you obtained that credit card of loan, it may have been issued on the basis that both you and your partner guaranteed to pay that money back. Even if you agreed to take on the debt, a person your former partner owed money to could go after your former partner for that debt, regardless of whether you agreed to be responsible for it and vice-versa. Further, if your partner misses a payment on a credit card they agreed to pay, then you may end up having to pay the balance, the interest, and the late fees, in addition to possibly having your credit rating dinged. To avoid these problems, we try and structure settlement agreements and orders to pay off all debts as part of the dissolution of the marriage.