On its own, divorce is a complex process, so when you throw variables like bankruptcy and debt into the mix, there’s really no telling how things will shake out unless you hire an experienced attorney to look at the details of your case.
In fact, what you go through in your divorce is probably going to be drastically different from what the next person experiences. We should know.
There are, however, a few things that you can count on when trying to figure out if you will be liable for your spouse’s spending. Here’s what you should know about bankruptcy and divorce in Florida:
Common Law Property and Equitable Distribution
In the United States, there are two ways that property is divided during a divorce, depending on state laws: as common-law property or as community property. Florida’s laws categorize its residents’ real estate and other assets as common-law property, which means that any couples seeking divorce in Florida will have to go through what is known as an Equitable Distribution scheme.
Equitable Distribution rarely divides property down the middle, as is often the case in community property states, but rather takes the circumstances of the divorce into consideration. What Equitable Distribution means for debt is this: any debt accrued in the name of one spouse, either prior to or during the marriage, will remain that spouse’s responsibility to pay back.
There are, of course, exceptions to this rule. For example, debt incurred in the name of a single spouse can become joint debt if it covered living expenses for the family. Needless to say, debt distribution and divorce are nuanced and complicated processes that require expert knowledge if you want to obtain a positive outcome, so it is important to seek legal counsel.
Liquidation and Seizure of Property
Depending on the type of bankruptcy you or your spouse file for, you might have to forfeit or sell some or all of your property and use the proceeds to pay down your debts. For instance, Chapter 7 bankruptcy, which is known as a liquidation bankruptcy, uses assets and real estate property to pay back money you owe.
Because Florida uses the Equitable Distribution scheme to divide debt, creditors cannot usually go after property that is jointly held, such as the family home or anything that is in both spouses’ names. However, if debt is accrued to pay for family necessities and living expenses, both parties are liable to pay that debt. In such cases, jointly-held property is fair game.
Prenuptial Agreements and Litigation
Signed prenuptial agreements containing language that stipulates how debt should be divided during divorce will, of course, override the Equitable Distribution scheme. The court will usually uphold these agreements. Because no two divorces or bankruptcy cases are the same, there is also a chance that the divorce proceedings could result in further litigation.
When you’re going through complicated legal matters such as divorce or bankruptcy, it’s important to hire a competent, experienced attorney to handle your case. If you’re worried about having to pay for your spouse’s financial decisions during your upcoming divorce, call the divorce and bankruptcy experts at AM Law.