Did your spouse run up large credit card bills without your knowledge? Take out a consumer loan without talking to you first? Now that divorce is on the horizon, are you afraid that you might get stuck with some of that debt, which you had nothing to do with?
Should you be concerned? It depends. Debts (and assets) are divided between divorcing spouses based on an “equitable division” standard, which basically means the division should be fair.
You may be able to negotiate your own marital settlement agreement in which you divide your liabilities (and property) and if that happens, you may be able to persuade your spouse to take on the debts they incurred without your knowledge during the marriage. Be sure to include all debts in your negotiation such as mortgages, vehicle loans, personal loans, lines of credit, credit cards, consumer debts and others.
The judge must review your agreement to be sure it is reasonable before they incorporate it into the divorce decree. Without a marital settlement, the judge in the divorce will make decisions about debt division between the parties.
First, the court must determine which liabilities are marital and which are separate or nonmarital. Nonmarital debt is mostly that which either spouse took out before marriage in their own name. If this debt is not paid off at the time of divorce, it will remain with the spouse who took it out premaritally.
A debt that would otherwise be nonmarital can become marital and vice versa if the parties agree in a valid premarital or postmarital agreement.
Normally, any liabilities taken on during the marriage by either party or jointly and with or without the knowledge or consent of the other spouse is marital debt to be equitably divided in the divorce.
Florida law has a presumption that a 50-50 division of debts and assets is fair. If it is not, the judge has the discretion to divide both equitably based on the evidence in the divorce. The Florida statute about equitable distribution requires that the court look at “all relevant factors,” including specific factors in a long list such as marriage duration, financial circumstances of each spouse, interrupted careers, whether the home should be preserved for the residence of a child of a marriage, intentional recent waste of marital assets and others.
The judge, however, must include in the written divorce order that divides debts and assets specific findings explaining the court’s reasoning based on the factors listed in the statute and the evidence.
For example, in the case of Kimm v. Kimm, the Fifth District Court of Appeal of Florida sent a case back to the trial court because the judge did not provide written justification for his award of almost all marital debt to the husband.