Who Gets the Mortgage? How Debt is Divided in Divorce

When most people think about assets in a divorce, they think about who keeps money and things. They consider things like homes, cars, and retirement funds. What you may not think about is debt. Most homes come with mortgages, and those are just as much your responsibility as the house itself.

It’s just as important to understand how debt is divided in divorce as it is to understand the asset division process. Without that knowledge, you risk taking on more debt than is fair. Here’s what you need to know about debt, divorce, and the best ways to make the split fair for everyone.

Divorce and the Division of Assets

California has some of the strictest rules in the country regarding marital property. It’s a community property state, which means that all assets and debts a couple collects during their marriage are supposed to be divided 50/50 should they divorce. The thought is that a marriage is a partnership, and both people contribute equally to the success or failure of their finances.

The exception comes if you set up a prenuptial agreement that designated certain debts or assets that would remain separate even after marriage. Of course, prenuptial agreements only work before you get married.

Without a prenuptial agreement, a public judge will divide both debts and assets equally between you and your spouse. This includes things like medical debt, mortgages, car loans, and credit card debt. However, you don’t have to accept a public court decision. Instead, you can get help.

Getting Help Dividing Debt

There are multiple options other than getting a divorce in a public court. These solutions can help you divide your assets in a way that’s not necessarily 50/50.

Mediation

If you can still talk civilly with your spouse, you can consider mediation. In mediation, a trained mediator will work with you and your spouse to help the pair of you develop an equitable divorce settlement. The mediator isn’t there to make any decisions for you. They simply offer suggestions and help you maintain a professional attitude.

During mediation, you and your spouse can choose to divide your assets in whatever way you both find fair. That includes giving one person the majority of the debt, as long as you both agree to it of your own free will. You simply need to submit your mediated agreement to a judge, who will approve it if you’ve both given your consent.

Arbitration

A step above mediation is arbitration. Like mediation, this method involves you and your spouse negotiating the settlement with a third party. However, an arbitrator will make legally binding decisions for you. If you want to discuss and negotiate your settlement, but you don’t think you and your spouse will be able to come to an agreement alone, arbitration is a great solution.

Arbitration can also lead to debt that’s not split equally. However, this is less common than in mediation. Since arbitrators make legal decisions regarding your assets, they must keep community property laws in mind.

Private Judge

Getting a divorce in front of a private judge is similar to the standard court process. The biggest difference is that a private judge isn’t handling a full caseload beyond your divorce. They have the time to focus on your case and understand the nuances of the situation.

Suppose you’re trying to make a legal claim that you shouldn’t be responsible for some of the debt your spouse acquired during your marriage. In that case, a private judge can give your case the attention it needs and potentially save you from taking on debt your spouse racked up without your knowledge.

Three Solutions for Debt Division

If you want to avoid taking on your spouse’s debts in your divorce, it helps if you have a plan. There are several strategies you can pursue that will help you achieve a fair split. These solutions work best when working with a mediator or arbitrator, though they can also be used in court-centered divorces.

Get a Postnuptial Agreement

A postnuptial agreement is similar to a prenuptial agreement, but it takes place after you’ve gotten married. If you’re not yet committed to getting a divorce, a postnuptial deal can protect you in the future.

If you’ve recently discovered your spouse has hidden debts from you, it may be an excellent time to get a postnuptial agreement. It can act as a stepping stone toward a more secure relationship or a simpler divorce. Postnuptial agreements require your spouse to consent to the new financial arrangement, so this solution is only available if your partner agrees the debt should be in their name alone.

Sell Assets to Cover Debts

If you’re already in the process of separating, a postnuptial agreement is no longer an option. In that case, you can consider selling assets to cover your debts.

A typical example of this is selling a house to pay off the mortgage. If both of your names are on the mortgage and deed, splitting the home can be legally complex. By selling it, you can simply divide the proceeds of the sale and erase the debt entirely.

Consider Buyouts

What if you or your spouse want to keep assets with debts attached? That’s when it’s time to consider a buyout. In a buyout, one partner offers the other additional assets to take full responsibility for a debt or asset.

For instance, if your spouse wants to keep the house, at a minimum, they would need to buy out your portion of the mortgage and equity. They could offer you complete ownership of retirement accounts or other assets equivalent to your share of the home. On the other hand, if you don’t want to take on medical debt from your relationship, you could offer them your portion of the home’s equity in exchange for them taking on the debt.

You Shouldn’t Have to Pay Your Ex-Partner’s Debts

If you’re leaving your spouse, you probably want a clean split. That doesn’t include paying for your spouse’s poor financial decisions. However, California law makes it challenging to achieve that alone. If you’re looking for solutions to avoid taking on your partner’s debts, you should find experienced legal representation.

A lawyer with experience in high-asset divorces can help you understand your current financial situation and your options. Schedule your consultation today to discuss your case. You deserve a fresh start. Let the experienced attorneys at Kaspar & Lugay LLP help you accomplish that.

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Kaspar & Lugay, LLP is a family law firm with offices in Corte Madera, CA; Napa, CA; Walnut Creek, CA; and San Diego, CA. We also represent clients in San Francisco, Oakland, Sacramento, Pismo Beach, Contra Costa County, and Los Angeles.