Property division in a divorce is almost always paired with the division of community debt.
Since California is a community property state, upon divorce, it is the net value of the marital community that is being divided, not just the assets. The net value of your marital community would be the total sum of community assets minus the to sum of community debts. This can be determined by both spouses filling out a
Today, debt is a normal component of any marriage. You may have a few car loans and a few credit cards. Even if you have very little debt, it can be as complicated as dividing assets because they are the undesirable part of property division.
Often people have misconstrued notions of how to divide debt upon entering into the divorce process. For example, if a husband got a master’s degree during the marriage to increase his earning capacity, which the wife benefited from thereafter, who gets the student loan debt? While student loan debt may be taken out in the student’s name, the debt was incurred as a marital community and thus is subject to equal division.
Similarly, if the wife had a credit card she used exclusively for herself that does not mean she automatically has to assume all the debt from that account. The individual debts themselves do not have to be divided; rather the total sum of community debt is divided as equally as possible.
Just as in property, community debt is any debt incurred during the marriage, prior to separation, regardless of in whose name and for what purpose. Couples can, of course, come to a mutual agreement on who should take which debts according to these factors, but a judge will have to review and sign off on it for the agreement to be valid and enforceable.
That being said, a judge may choose to modify an unreasonable debt division as they see fit before signed. Consult an experienced family law attorney for help on drafting up a reasonable division. For example, if a spouse who had a significantly smaller earning capacity agreed to take on an unreasonable amount of debt for their income, for any variety of reasons, a judge may redistribute some of the debt. Unreasonable divisions may put the other spouse whose name is on the debt at risk if payments aren’t made and or it might be a division that doesn’t take into account interest rates, late penalties, loan terms or credit ratings, all variables that can be overlooked in an initial debt division.
If you are in the Los Angeles or greater L.A. area and have questions about debt division during a divorce, Certified Family Law Specialist Mark H. Karney can help. Attorney Mark H. Karney and his skilled complex divorce litigation team can provide expert counsel to help you walk away from your divorce in a favorable financial situation. Call our Los Angeles office at 310-622-9434; email us at firstname.lastname@example.org or contact us through our online form today to schedule a free consultation.