Who is responsible for the debts incurred during the marriage? The answer can vary.
The property division determination of divorce is often the most contentious part of the process. This process requires couples to determine how all assets are divided. This can include determining who should be responsible for various debts. Responsibility for these liabilities can vary, and a basic understanding of how the law treats these obligations can help you through the process.
Before delving into this information, it is important to note that divorce is a creature of state law. As a result, this piece focuses on how this legal issue is generally addressed in Texas.
How is property distributed during a divorce in Texas?
Texas is a community property state. This means that property gathered during the marriage is viewed as community property owned by the couple. This property is subject to division during divorce. When dividing property, the court is required to review the property and make a split that is deemed "just and right." The final determination may not be an equal split. Various considerations are taken into account when making this determination and can include the earning capacity of each individual, whether there was fault that contributed to the end of the marriage and whether one individual is taking on the sole responsibility for rearing any children that may be present from the marriage.
There are some exceptions to what types of property are considered marital. Two common examples include property that was attained prior to the marriage and kept separate during the marriage as well as inheritance that is acquired during the marriage but kept apart from marital property. This is referred to as separate property and is not subject to division, but remains the sole property of the owning spouse.
How are liabilities divided during divorce?
Courts in Texas generally ask four questions when determining how to divide debts. First, who is responsible for the debt? Second, when did the individual or couple incur the debt? Third, what type of debt is it? There is generally one of two answers to this third question: tortious or contractual. A contractual debt is one that is agreed upon, such as the purchase of a vehicle or a mortgage payment. A tortious debt generally involves a wrong done to a person, such as an accident where the individual was found to be at fault. The last question looks into whether or not there are other laws that could make one spouse personally liable for the debts of the other. Debt is then split based on the answers to these questions. As a result, the split can vary depending on the details of each marriage.
The fact that the answer can vary shows the importance of legal counsel when navigating a divorce. Your lawyer will advocate for your interests, gathering evidence to establish who owns the debt and better ensuring you are not held responsible for liabilities incurred by your future ex.