How Debt Is Divided in a Divorce

A common concern for people going through divorce in Virginia is the division of debt. This is especially true if one spouse has accrued credit card debt, taken on an expensive car loan, or has other spending that the other never agreed to.

As an equitable distribution state, debt in Virginia, like property, is divided based on what’s fair given the full picture, not automatically split in half.

The Difference Between Marital Debt and Separate Debt

Under Virginia Code § 20-107.3, debt incurred during the marriage is presumed to be marital debt, regardless of whose name is on the account. A credit card opened solely in one spouse’s name still counts as marital debt if it was run up before the date of separation. 

Separate debt, on the other hand, generally includes anything incurred before the marriage or after separation, along with debt a spouse can prove was unrelated to the marriage, such as money spent on an affair.

The date of separation draws a stark line between marital and separate debt. Debt racked up after the date of separation is typically treated as the separate responsibility of whoever incurred it, though there are exceptions. For example, if the spending was for shared household expenses like a mortgage payment or a child’s medical bill.

	Marital Debt	Separate Debt
When is the debt incurred?	During the marriage, before separation	Before marriage or after separation
Whose name is on the debt?	Irrelevant	Irrelevant
What is the presumption?	Marital, unless proven otherwise	Individual responsibility
Common examples.	Joint credit card used for family expenses	A car loan taken out three months after moving out

Why Your Divorce Order Doesn’t Stop a Creditor From Calling You

While a divorce order in Virginia can divide responsibility for debt between spouses, lenders are not a party to that case and are not bound by it. If both names are on a credit card, mortgage, or co-signed loan, the creditor can still pursue either spouse for the full balance, no matter what the order says about who’s supposed to pay it.

An order can include an indemnification clause, requiring one spouse to reimburse the other if a creditor comes after the wrong person. That defines the financial relationship between the two former spouses, but it does nothing to stop the creditor from calling, reporting a missed payment, or pursuing collection.

What the order can and cannot do: A divorce order can assign responsibility for a debt between spouses and require one spouse to indemnify the other. It cannot remove either spouse’s name from a joint account, rewrite a mortgage, or prevent a creditor from collecting from whoever’s name is legally on the debt.

How Courts Actually Decide Who Pays What

Virginia courts apportion marital debt using the same statutory factors that guide property division under § 20-107.3(E). A 50/50 split is common, but it isn’t guaranteed, and judges have real discretion here.

Among the factors they consider are:

• Each spouse’s monetary and nonmonetary contributions to the marriage.
• Who incurred the debt and what it was used for.
• Each spouse’s income, debts, and ability to pay going forward.
• The circumstances that led to the divorce, including whether marital funds were spent on an affair or similarly unrelated purpose.
• How and when the debt was acquired relative to the marriage.

D.C. courts weigh similar considerations under D.C. Code § 16-910, though the specific list of factors and how heavily each is weighted can differ from Virginia’s approach.

Joint Accounts, Mortgages, and Hidden Debt

The safest move after separation is to close joint credit lines as early as possible, before either spouse has a chance to run up new charges on a card the other still technically owes. The same logic applies to a shared mortgage or auto loan: refinancing to remove the departing spouse’s name, or selling the asset outright and paying off the loan, protects both people.

Hidden debt raises a different problem. If you find an account, loan, or credit line your spouse never disclosed, bring it to your attorney right away rather than confronting your spouse directly. Undisclosed debt can affect how a court weighs the equitable distribution factors and, in more serious cases, it can also raise questions about whether other assets or debts were hidden as well.

Imagine a couple that separates but neither closes the joint credit card they used for groceries and gas. Six months later, one spouse has run up several thousand dollars on it, which the other is still legally on the hook for because the creditor doesn’t know or care that the marriage ended.

A few steps reduce your exposure on all of this:

1. Close joint credit lines as early as possible once separation is on the table.
2. Refinance a mortgage or auto loan to remove a departing spouse’s name, or sell the asset and pay off the loan entirely.
3. Pull a full credit report to check for accounts you didn’t know existed.
4. Bring any hidden debt to your attorney immediately.

Before the Order Is Final

Well before your divorce is finalized, you should take steps to protect your future finances. Start by pulling a credit report for a full picture of every account tied to your name. List every joint and individual debt, and note when each one was incurred. Finally, decide which accounts to close, refinance, or pay off before your divorce is settled.

If you’re facing a divorce with shared credit cards, a mortgage, or debt you’re not sure you should be responsible for, a consultation with Eris Law Group can help you map your exposure before it’s locked into a final order. Contact us online or call (703) 424-9675. We serve clients in Alexandria, Virginia, and throughout Northern Virginia.