My ex wife and I are still going through the equitable distribution phase. Our marriage fell apart mainly due to her refusal to work and financial irresponsibility. She has a master’s in education and worked during our marriage once for 6 months and another time for 2 months as a teacher.
- She incurred over $100k in student loans PROT to our marriage. She listed her student loan debt as marital debt on the ED worksheet. Can I be made to pay a portion of her debt?
- She came into the marriage with more than $40k in credit card debt for cards she told me were closed. On the ED worksheet she listed all these debts as marital debt and is trying to make me pay half. During our marriage I can show that she funneled money out of our account to make payments on these cards that I assumed were closed and being paid off. Can I be made to pay half?
She apparently was using these cards during our marriage however there is nothing that was purchased for the household. I have asked for credit card statements to see what she was buying during our marriage cause there is nothing that we have that I didn’t buy from MY income. She had refused to provide credit card statements.
How will the court determine what debt was incurred before the marriage? Will my wife have to show proof that these credit cards were used for purchasing stuff for the marriage/household? I know she can’t because she didn’t.
How does the court determine that the debt is separate or marital when I claim that she had these debts before marriage but she claims that they are marital debt? She doesn’t deny that she had these cards before marriage or that she incurred her student loans before the marriage but her attorney still filed her ED affidavit claiming that these are marital debt.
You are not responsible for her student loans that were incurred before the date of marriage. Debt acquired prior to the date of marriage is the separate debt and separate responsibility of the party incurring the debt.
The credit card debt acquired prior to the date of marriage is her separate debt and separate responsibility. You will need to get date of marriage credit card statements to compare the balances between the date of marriage and date of separation. Any increase in debt would generally be considered marital debt to which both parties are equally responsible. This is how you would prove which portion of the credit card debt is separate (before marriage) and which portion is marital (during marriage but before date of separation).
You cannot recoup marital funds paid towards separate debt during the marriage.
She will have to show her credit card statements. Both parties have a fiduciary duty to provide a full financial disclosure.
Generally credit card debt acquired during the marriage is considered marital debt to which both parties are responsible. Marital debt is debt incurred for the joint benefit of the marriage or for a marital purpose. It is very difficult to prove that credit card debt is not marital debt unless it is obvious from the statements that the purchases were not for the joint benefit of the marriage or for a marital purpose (for example: one spouse was incurring credit card debt to pay for an escort service).
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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