Deciding to obtain a divorce can be hard enough, but it can be even more
complicated when finances come into the equation. People are usually concerned
with how they will divide their property and assets; they forget to take
into account debt. Understanding what compromises debt during a marriage
will help you understand how it is divided during a divorce in San Bernardino.
California is a “community property” state, meaning debt accrued
during a marriage must be divided equally between both spouses, regardless
of who incurred it. While courts may not concretely split the debt in
half, they will make sure that the amount owed and the assets gained are
equally shared between the splitting husband and wife. The exception to
this practice is if the couple has a pre-nuptial agreement articulating
how debt will be divided in case of a divorce.
The court examines the value of both the couple’s assets and debt.
If the value of the debt exceeds the value of assets, the court has the
right to unequally assign debt division. In most cases, courts will assign
the excess debt to the party that is better financially situated.
The two forms of debt courts consider are:
Community Debt – A couple generates this debt during their marriage through their separation
debt. Both parties are responsible for the money owed.
Separate Debt – This debt is accrued either before or after a marriage. Only the person
incurring the amount must pay it off.
The date of separation determines when a couple’s debt stops being
communal. California law dictates two components for defining the date
of separation. They include:
- The day that a couple physically separates. One spouse must move out of
the shared home. In some cases, courts may consider the moment when a
couple starts sleeping in separate rooms.
- One spouse must have an intent to end the marriage.
At James D. Madden & Aruna P. Rodrigo, Family Law Attorneys, we want to help you through your divorce.
We recommend filling a
schedule of assets and debts to list the current debts you and your spouse owe. Our San Bernardino
divorce attorneys can help you seek fair division of debt during your
marriage dissolution. Call our office today at (909) 344-5704 to schedule
a free consultation!