Is Personal Debt Shared In Divorce?17th Aug 2020
Are you worried that you could be responsible for half your former partner’s debts when you split up? Why should you have to fund their excessive credit card bills or online gambling habit?
Our experienced family solicitors can help stop your former partner from taking financial liberties at your expense.
We will help you to secure a fair settlement when you get divorced or dissolve your civil partnership.
Joint Debt After Divorce
Did you have a joint bank account? Or joint credit cards in both your names? If so, then (on paper) you are legally liable to help pay any debts accrued in those accounts. But that is not the full story…
If you can prove that you did not benefit from your partner’s expenditure or that you were not aware of it, then a court may decide that a 50/50 split would be unfair to you.
Ultimately however, prevention is better than cure. If you are concerned about your ex-partner’s spending habits, you should take steps to come to a financial agreement as soon as possible before their spending spirals out of control.
Divorce And Debt Responsibility
Getting divorced or dissolving a civil partnership can mean significant financial changes for both of you. That is the reality – but it doesn’t mean that your former partner should be able to treat you like an ATM.
How is debt divided in divorce? Who is responsible for the mortgage, car loans and credit card debts? Your debts (and assets) will be shared fairly between the two of you.
Your starting point should always be to try to come to an agreement with your ex-partner. Depending on your circumstances, this could either mean attending mediation or instructing a solicitor to negotiate on your behalf. You remain in control of the process. It is quicker, cheaper and less stressful than going to court.
Mediation – or some other form of alternative dispute resolution – is almost always better than a courtroom. Going to court should always be a last resort.
If your case goes to court, you lose control of the final decision; a judge decides for you. This process is longer, more expensive and less certain from your point of view. The judge will divide your assets and debts in the way that it sees as most fair to you, your former partner and your children (who are the court’s primary concern).
However, you run the risk of the judge deciding that you should be liable for some of your partner’s debts. You need to be able to prove that as much of the spending as possible was:
- run up without your knowledge or consent
- solely for the benefit of your partner – and not for you.
You also need to be able to prove that you had little or no prior knowledge of whatever caused your partner to run up those debts.
If you lived with a shopaholic or a gambling addict for years and accepted or tolerated their problem then the court is more likely to make you liable for some their debts.
To avoid this scenario, it will help if you can prove that your partner hid these activities from you.
Who Repays The Mortgage? And How Much?
By far your biggest debt will be the mortgage. And – like so many other financial aspects – a judge will decide for you if you can’t agree.
If you and your partner are both named on the mortgage contract then you are both liable to contribute towards it, even if one of you is no longer living in the property.
If you are paying the outgoings on a property you are not living in, it is important to try to come to a financial agreement without delay. Upon divorce, consideration will be given to whether
- a clean break can be achieved
- one of you would be able to meet the mortgage repayments in full and remain in the property.
Worried about mortgage repayments? Talk to our experienced family lawyers – we can find ways to help reduce your financial difficulties and make life easier after separation and divorce.
Joint And Several Liability
What happens to a debt in a divorce or separation depends on the contract(s) you and your partner signed.
You may be jointly and severally liable in your debts. This is very serious. You could be liable for the whole debt if your partner can’t pay. The creditor can approach either you or your partner for the entire sum owed – not just a chunk of the debt.
Joint liability means that you and you partner must share the responsibility. Several liability means you (or they) alone may have to shoulder the whole debt.
Joint and several liability is a difficult situation to escape but it is not impossible. Detailed legal examination of the contract terms may reveal an error or omission that could render it invalid – freeing you from your obligation to pay.
Get Expert Legal Help
Getting divorced and reaching a financial agreement are two separate processes in the eyes of the law. It pays to get expert legal advice – otherwise you run the risk of:
- losing valuable or sentimentally important assets that are rightfully yours
- not getting a fair settlement in the financial split
- being forced to pay an unfair share of joint debts
- your former partner coming back for more money years later because you didn’t secure a full, final and binding financial settlement.
Contact Coles Miller family law solicitor Anna Burton to learn more about protecting your finances when a relationship breaks down.