In any divorce, marital property and debt need to be separated. In Kentucky, this is done on an equitable basis, meaning the division might not be 50/50 but based on what is fair and reasonable. You can negotiate for a reasonable settlement or you can let the court decide.
Whether you’re dividing property or debt, the first step is to determine if it belongs to the marital estate or is retained separately by one party. Property and debts accrued during the marriage will generally be considered marital. The growth and interest of separate property or debt during the marriage may also be considered marital.
Items owned and debt accrued before the marriage will generally be considered separate. So will individual gifts, inheritances and the like. Your divorce attorney can help you determine which assets and debts are marital and which are separate. Only marital property and debts need be divided.
Protect yourself and your credit when dividing marital debts
Your divorce decree may order you to pay certain marital debts and your ex to pay others. However, if one of you fails to make a payment, the other’s credit could be affected.
Marital debts to be divided are often joint debts, such as most mortgages, joint credit cards and such. Unfortunately, your divorce decree cannot relieve you of responsibility for joint debts. The only ways to get free of a joint debt are to pay it off or to refinance it so that only one borrower remains — and creditors often resist releasing debtors from their obligations.
Therefore, it is important to pay off joint debts as soon as possible. In the meantime, you may wish to freeze joint credit accounts and/or remove your ex as an authorized user in order to prevent them from racking up additional debt.
If your mortgage is to be divided, you have a choice to make. You can sell the property and divide the proceeds equitably. Or, one spouse can assume responsibility for the mortgage. However, that leaves the other spouse on the hook for the mortgage unless the first person is able to refinance and remove the second from the loan.
There may be situations where it makes sense to pay off a loan your ex has been assigned responsibility for, if only to save your credit. When doing so, however, make sure you are not taking on more than your fair share of the marital debt.
Work closely with your divorce lawyer to determine what you can afford and how comfortable you are with any remaining joint debts.