Pre-marital debt and cross border marriage


#1

Debt that was incurred by either spouse prior to marriage remains their separate debt. Debt that is incurred during the marriage is marital debt regardless of the person in whose name the debt was incurred.

Your property issues are generally settled in the state in which you live, unless all or most of the property is located in another state, the state you live in is generally the most appropriate place for those issues to be resolved.

Living together prior to marriage does not change anything about property distribution if you should later divorce.

Our firm does not do prenuptial agreements, but if contact us we can give you referrals to someone who does.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#2

Hi Helena,

Thanks for your reply. Debt that was incurred by either spouse prior to marriage remains her separate debt, however, in the course of the marriage, if her debt is not paid prior to entry of marriage and if she does not have any income to pay her debt, then that debt becomes an obligation of the husband to assist her to pay for her debt even though the debt is in her name. How is the law applied under these circumstances and what do you recommend as a pre-marital course of action to avoid any problems?

Also, since she still has debt carried into the marriage, how does it impact the newlyweds in the course of obtaining a mortgage or any other loan?

Finally, what would you recommend for marital joint savings accounts and other jointly held assets if she has her debt without any income and the husband is not legally obligated or willing to pay for her pre-marital debt?

Look forward to hearing from you.


#3

If you paid off her pre-marital debt during the marriage it is generally considered a gift to the marriage. You may be able to use it as a factor to argue for an unequal distribution. If this is a situation in the future you could enter a clause in a prenuptial agreement requiring repayment to the spouse who pays the pre-marital debts of the other spouse.

I do not know how this debt would impact your future credit worthiness, a financial advisor or lender would be better able to advise you on this.

In your last question it appears you are requesting advice regarding a prenuptial agreement, because I do not practice in this area, I am not comfortable giving you an opinion on this issue.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#4

Hi Helena,
Thanks for the reply. How does inheritance fit into the equation? She is expected to inherit monies from her trust fund in about eight years. Her inheritance more than offsets her debt too. Would her trust account become part of the marital assets?

Also, if I have a savings account in my name, she has an account in her name and then we have a joint savings account, are all accounts included as marital assets regardless of name?

Finally, who would you recommend for a pre-nuptual agreement?


#5

An inheritance to one party during the marriage is the separate property of the receiving party.

If you need a referral you may contact Shawn McMullen in our office and she would be glad to provide you with one.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#6

Dear Sir or Madam:

First off, your website is excellent. I found the information most useful but I have a couple of non-FAQ type of questions.

While all assets that are held before the marriage remain with the owner, what about debt of one of the spouses? It sounds like the debt incurred before the marriage would remain with the individual who incurred it before the marriage rather than becoming part of the matrimonial mix. On the other hand, if one borrows money during marriage under his or her name, would that debt become part of the marital “pot” of property if it is under one name only and not both?

Secondly, if my fiance and I marry in North Carolina, would we require to be divorced in North Carolina or would the divorce, alimony and property issues be settled in the state or country of residence? If property is held by one of the spouses in another state or country and this property was acquired during the course of the marriage, would the other spouse be able to pursue equilization of that property as part of the total “pot”?

If my fiance and I live together before we get married for about a year or maybe just less than a year, how would this impact a potential divorce? Lastly, since I am a Canadian citizen and live in Canada for the moment and my fiancee is an American citizen living in North Carolina, what would be required to make a prenuptual agreement more effective and would your firm be able to assist in creating such an agreement?

Thank you for your consideration and I look forward to hearing from you.