Divorce and Division of Retirement and Credit Card Debt

We were recently asked be a woman seeking a divorce if she was entitled to a division of her husband’s retirement accounts and if she would be liable for his credit card debt.

In Georgia we divide marital assets and debts equitably. This raises two questions, what are marital assets and debts and what does the court view to be equitable?

Anything acquired during the marriage, whether it be a retirement account or a toaster is marital property unless it was a gift or an inheritance to just one party. Gifts and inheritance can be made marital if they are commingled, meaning deposited into a joint account or spent on something else that is marital. The same applies to debts, if they were acquired during the marriage, they are most likely marital.

So, if your husband’s retirement accounts were built up during the marriage and the debt that he has was also acquired during the marriage, then they are most likely marital and subject to equitable division. This brings us to the second half of this issue. What is equitable division?

Equitable division simply means a fair division in the eyes of the law and the court. The court will generally view both parties as one marital unit and believe that anything acquired by that marital unit belongs to both people equally, no matter who actually earned the money or ran up the debt. Thus, equitable division usually starts from a position of 50/50. To sway the court away from a 50/50 division of the assets and debts the court will look at the facts and circumstances surrounding the marriage. For example, if the source of the debt is one party’s secret gambling addiction, then the court might not hold the other innocent party responsible for such debt. If the debt is for food and house repairs, it is likely to be divided equally.

 

For more information on division of retirement accounts, click here

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