In an earlier blog about marital property, I mentioned that South Carolina is an equitable apportionment/distribution state. However, before the distribution takes place, marital assets, and marital debt must be identified. So, if you are going through a divorce (or planning for one), knowing your debts as your assets is equally important.

What are Marital Debts?

If debts have accrued during the marriage, it is presumed to be marital debt; however, it is a rebuttable presumption. Along the same lines, there is a rebuttable presumption that the debts of either spouse incurred prior to the beginning of marital litigation are marital and must be factored in the totality of equitable apportionment. Thompson v. Thompson, 377 S.C. 613, 661 S.E.2d 130, 136 (Ct. App. 2008). Therefore, when a debt is proven to have accrued before the commencement of marital litigation, the burden of proving the debt is non-martial rests on the party who makes such an assertion. Schultze v. Schultze, 403 S.C. 1, 741 S.E.2d 593 (Ct. App. 2013).

marital debtIn other words, if the debt is accrued during the marriage and before the filing of the divorce or separate maintenance and support action, it is presumed to be a marital debt. So, if you want to argue that a debt is non-marital, you must prove it is non-marital. For example, one argument in establishing presumed marital debt is non-marital is if your spouse incurred the debt without your knowledge. Again, from the judge’s bench: “If one spouse is unaware of debts that the other spouse incurred, this can be considered by the family courts as evidence that the debts were not incurred for the joint benefit of the parties”. Grumbos v. Grumbos, 393 S.C. 33, 47, 710 S.E.2d 76, 84 (Ct. App. 2011).

What is Not Considered Marital Debt?

If one spouse takes out a car loan during the marriage, that can be considered marital debts, as the family benefits from having the car. However, if one spouse accrued gambling debts from casino visits. If he or she kept secrets from a spouse, those may not be marital debts.

Ultimately, who is responsible for marital debts? You and your spouse. What is considered marital debt? Moreover, how it is distributed is where the process gets more complicated than a one-line answer. Be sure to consider and be familiar with all the debts you and your spouse have incurred during your marriage.

To help you understand marital debts and assets and their role in divorce, contact our office to discuss your situation and see whether we can help.

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