Divorce and Debt: Divorcing Couples Beware
Written by Adelmis Bohigas Naderpour, Esq.  [email protected] 
and Amir Naderpour, Esq.  [email protected]

American household debt hit a record high at the end of 2022.  A study by credit reporting agency Experian found that families with children have more total debt than the national average, and married couples tend to have double the debt of single individuals. With average consumer debt for families on the rise, it is no surprise that most divorcing couples are concerned about who will be responsible for the payment of their debt following their divorce.

Florida is an “equitable distribution” state. This means that the debt either spouse incurs during the marriage is typically considered a “marital” debt subject to equitable distribution by the Court.  Florida Statute §61.075 governs the equitable distribution of marital assets and liabilities in Florida.  It provides that when dividing marital assets and liabilities, “the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution.”   It also provides that debt incurred by either spouse prior to the marriage is  “nonmarital” and not subject to equitable distribution by the Court.  This means that a spouse cannot be held responsible for the payment of any pre-marital debt incurred by the other spouse prior to their marriage.

Married couples incur debt during their marriage in their joint and/or individual names. The debt might be secured or unsecured.  A secured debt has property pledged as collateral for a loan whereas an unsecured debt does not.   Secured debt in a typical divorce includes home mortgages and car loans.   It might also include loans secured by equipment or inventory in those cases where a spouse owns a business, and properly recorded judgments or liens on real estate properties.  If secured debt is not paid, the lender or lien holder may foreclose on the loan or lien and force the sale of the property pledged as security to pay off the debt.  Unsecured debt typically includes medical bills and most credit card debt.

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