Debt & Divorce: Part I | Columnists | Summerville Journal Scene

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Debt & Divorce: Part I

Published Tuesday, December 01, 2009 2:01 PM

By Tiffany N. Provence, Esq. and Russell DeMott, Esq.
Summerville Journal Scene ®

Discord over finances is always a primary cause of divorce. And, it’s only getting worse. Where attorneys used to divide up assets between couples, now they spend a great deal of time dividing up debt.

Couples blame each other for their financial situation and have resentment towards each other over how to spend what little income they do have. As a result, divorce becomes a way out. Or is it? Here are a few things to consider when it comes to debt, divorce and bankruptcy.

First, while you can divorce your spouse, you can’t divorce your debts at the same time. Know that debts incurred during the marriage generally belong to the “couple.” When dividing up debt, the court will consider many factors to achieve an equitable (fair) distribution of the debts. And, don’t assume that just because a debt is in the other spouse’s name that you can simply walk away from it. Your creditors are not a part of the family court action and because they aren’t protected or represented in the process they can still pursue you. While the court will ultimately decide which party is responsible for certain debts, legally you’re still liable to the creditor.

A joint bankruptcy filing may be a mutually beneficial solution to this problem. Not only will this save on filing fees and legal costs, but it will also eliminate much of the debate in family court over how to mange the debt. In addition, when couples file bankruptcy, they sometimes find that the process of sorting through the debt and being forced to create a plan for its payment ultimately leads to a marriage that can be repaired.

When divorce is imminent and you choose to move forward before filing for bankruptcy, it is important to have an attorney advise you on the effects of bankruptcy after divorce. For example, filing bankruptcy does not avoid the payment of court ordered child support or alimony payments. And, if it’s your former spouse who plans to file, your attorney will need to advise you on methods of protecting yourself.

While legal advice is another expense in an already tight budget, understanding the role of debt in divorce is essential. Many attorneys offer low-cost consultations where you can get a general understanding of the law as it applies to your case. Knowing the consequences of these decisions before making them just may save your marriage, your credit, or at least your sanity.

Tiffany N. Provence is a Summerville Family and Probate Law Attorney who practices with the firm of Provence Messervy, LLC.

Russell A. DeMott is a Summerville Bankruptcy Attorney who practices with the firm of Wyckoff & DeMott, P.C.

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