If you are heading for a divorce, your concerns may largely fall to how your property will get divided. However, you should also consider your shared debts and how the court may see fit to split them between you and your soon-to-be-ex. 

Just like your shared assets, the court may also divide your marital debts during a divorce. To make this determination, the court first identifies shared debts, or those incurred during the marriage, by both spouses together or one spouse alone, and for the necessity or to the benefit of the household. Considered a part of your marital property, the court may then divide your shared debts in accordance with the principle of equitable distribution. 

Equitable distribution may seem that the court will split your marital debts 50-50, assigning each you and your soon-to-be ex-spouse an equal portion of your financial obligations. However, equitable distribution does not necessarily mean an equal split. Rather, the court’s mandate requires judges to divide a divorcing couple’s assets based on what they deem as fair and equitable. 

According to state law, in considering the equitable distribution of marital property during a divorce, the court may consider factors such as the following: 

  • The property or income you and your spouse brought into the marriage 
  • Your and your spouse’s economic circumstances at the time the property division takes effect 
  • Your and your spouse’s earning capacity and income 
  • The contribution that you and your spouse made to each other’s education, training and earning potential 
  • The potential tax implications 

If you and your spouse had a prenuptial agreement or other written agreement prior to your divorce, the court may also consider the specifications of that document when deciding how to divide your assets, as well as your debts during a divorce.