Dividing property in a Florida divorce is only half the equation. Alongside assets, debts must also be identified, valued, and equitably distributed. Whether it’s a mortgage, credit card, auto loan, student loan, or personal debt, the financial obligations incurred during a marriage don’t disappear when the relationship ends—they must be fairly allocated between the spouses.
In many divorces, the allocation of debt can be as contentious as the division of wealth. Who is responsible for the credit card balance? What if a loan is in one spouse’s name, but both parties benefited? Does it matter if one person racked up debt on luxuries or for an extramarital affair?
Florida courts apply equitable distribution principles to both assets and liabilities. But “equitable” doesn’t always mean equal. A skilled Tampa divorce attorney can help you understand your rights, assess your obligations, and develop a strategy to protect your financial future as you navigate debt division in your divorce.
How Florida Courts Handle Debt in Divorce
Under Florida Statute §61.075, courts must identify, classify, value, and distribute all assets and liabilities in a divorce. The statute outlines that the division of both marital assets and marital liabilities must be equitable.
This means courts must determine:
- Whether a debt is marital or non-marital
- What the value or balance of the debt is at the time of distribution
- How to allocate the debt fairly between the spouses
Florida law does not automatically require a 50/50 split. The goal is a fair allocation, considering the circumstances of each case.
A Tampa divorce attorney will gather and present the documentation necessary to support a favorable debt allocation outcome.
What Is Considered Marital Debt?
Marital debt is any debt incurred during the marriage, regardless of whose name is on the account. This includes:
- Joint credit cards
- Auto loans acquired during the marriage
- Mortgages on the marital home
- Business loans for a jointly operated venture
- Personal loans used to benefit the household
Even if a credit card is in just one spouse’s name, it may still be considered a marital liability if it was used to pay for family expenses.
A Tampa divorce attorney will analyze the origin and use of each debt to determine whether it qualifies as marital.
What Is Considered Non-Marital Debt?
Non-marital debt is any liability that:
- Was incurred before the marriage
- Is tied to a non-marital asset (e.g., loan on a premarital property)
- Is clearly identified in a prenuptial or postnuptial agreement as separate
- Was incurred for personal use and not for the benefit of the marriage or family
- Is linked to misconduct, such as gambling or spending on an affair
If a debt falls into these categories and can be clearly traced, the spouse who incurred it will generally be solely responsible.
A Tampa divorce attorney will compile financial records and legal arguments to defend against being saddled with a spouse’s non-marital debts.
Common Types of Debts in Divorce
1. Credit Card Debt
Credit card balances are some of the most litigated liabilities in a divorce. Courts will look at:
- Who opened the account
- When the charges occurred
- What the charges were for
- Who benefited from the charges
- Payment history and usage patterns
If the card was used for groceries, household supplies, travel, or children’s needs, it is likely marital. If it was used for personal luxuries or a secret affair, it may be treated as non-marital.
A Tampa divorce attorney will subpoena statements and analyze spending to argue for or against responsibility.
2. Mortgages and Home Equity Loans
Mortgages on the marital home are usually shared marital debts. The court may:
- Order the home sold and the debt paid off
- Award the home (and mortgage) to one spouse with offsetting assets
- Divide equity and responsibility for the loan differently based on income
If there is a second mortgage or home equity line, courts must determine how and why the funds were used.
A Tampa divorce attorney will structure a plan that addresses both property division and liability management.
3. Auto Loans
If the car is kept by one spouse, that spouse usually assumes the loan. However, if both parties are co-signers, the lender may still pursue both if payments are missed—even after divorce.
Courts often require the spouse retaining the vehicle to refinance the loan, if possible.
A Tampa divorce attorney will help negotiate terms and protect against post-divorce liability.
4. Student Loans
Student loans are often treated as marital if the debt was incurred during the marriage—even if only one spouse benefited from the education. However, if the education produced no economic benefit to the marriage, the debt may be assigned solely to the student.
The analysis depends on:
- Timing
- Use of marital funds for repayment
- Contributions to household income during or after schooling
A Tampa divorce attorney will present facts to support or dispute the marital nature of student loans.
5. Business Debt
If the couple jointly owns a business or one spouse started a business during the marriage, debts associated with it are typically marital.
However, if one spouse operated the business as a sole proprietor and kept finances separate, liability may not be shared.
A Tampa divorce attorney may involve forensic accountants to evaluate business records and liabilities.
Debt Allocation and Income Disparity
Florida courts may assign more debt to the higher-earning spouse when:
- There is a significant disparity in income
- The lower-earning spouse has limited earning potential
- One spouse is awarded a larger share of assets
- The debts were incurred primarily by or for one spouse
This approach is not automatic but can be argued based on fairness.
A Tampa divorce attorney will use financial affidavits, tax returns, and expert testimony to support equitable allocation arguments.
Intentional Dissipation of Debt
If a spouse accumulates debt recklessly or for improper purposes near the end of the marriage, courts may assign the liability solely to them. This includes:
- Gambling losses
- Excessive spending to reduce marital assets
- Credit card use to fund an extramarital relationship
- Loans taken out secretly without spousal knowledge
- Financial misconduct during separation
Courts take a dim view of such behavior, and a finding of dissipation can significantly affect the final division.
A Tampa divorce attorney will gather proof of misconduct and request a disproportionate allocation of liabilities.
Handling Jointly Titled Debts
Even after divorce, creditors are not bound by the court’s allocation. If both names are on the account:
- Creditors can still pursue either spouse for payment
- Missed payments affect both credit scores
- Refinancing or paying off the debt may be required to fully sever ties
Judges may order one party to refinance or indemnify the other, but enforcement can be complicated.
A Tampa divorce attorney will draft enforceable orders and follow up with post-judgment remedies if violations occur.
Strategies for Dividing Debt
1. Offsetting Assets Against Debts
One spouse may agree to take on more debt in exchange for keeping more assets, such as:
- Retaining the home while assuming the mortgage
- Keeping a retirement account in lieu of requiring reimbursement
- Assuming credit card balances in exchange for other benefits
This strategy simplifies the division and allows for flexibility.
2. Selling Property to Pay Down Debt
Some couples choose to liquidate marital property and use the proceeds to pay off debt before or after the divorce.
This avoids long-term liability and post-divorce collection issues.
3. Debt Buyouts
One spouse may “buy out” the other’s share of a debt or asset, ensuring they are not financially tied post-divorce.
This may involve lump-sum payments or structured settlements.
A Tampa divorce attorney will customize these strategies to match your financial priorities and legal risks.
Protecting Credit During Divorce
Even when a divorce order assigns a debt to one spouse, credit reporting agencies and creditors may not honor that distinction.
To protect your credit:
- Close or freeze joint accounts
- Remove authorized users
- Request written confirmation of account changes
- Monitor your credit report
- Require refinance deadlines in the settlement
A Tampa divorce attorney can include indemnity provisions and enforcement clauses in your settlement agreement.
Tax Implications of Debt Allocation
Dividing debt can have tax consequences, including:
- Cancellation of debt income if creditors forgive balances
- Deductibility of mortgage interest (limited post-divorce)
- Allocation of property tax obligations
- Tax reporting on credit card charge-offs
Failing to account for tax implications can result in surprises after judgment.
A Tampa divorce attorney will work with tax professionals to ensure debt allocation aligns with your overall financial strategy.
Enforcement of Debt Orders
If a spouse fails to pay a debt they were assigned:
- You may be sued by the creditor if your name is on the account
- You may need to file a motion to enforce or for contempt
- The court may issue judgments, wage garnishments, or property liens
- Attorney’s fees may be awarded for enforcement efforts
Debt obligations must be clearly written and legally enforceable.
A Tampa divorce attorney will structure the language of your final judgment to make enforcement efficient and effective.
Dealing with Bankruptcy During or After Divorce
If one spouse files for bankruptcy during or after divorce:
- It may discharge their personal liability to creditors
- It does not discharge obligations to the other spouse under the divorce order (in most cases)
- It can delay or complicate the divorce
- Certain debts (like support or fraud-based debts) are non-dischargeable
Bankruptcy may impact property settlements, especially if debts were allocated as part of a larger negotiation.
A Tampa divorce attorney will coordinate with bankruptcy counsel to protect your divorce-related rights.
FAQ
Q: Do I have to pay my spouse’s debts after divorce?
A: Only if the debts are classified as marital and assigned to you by the court. Non-marital debts remain the responsibility of the spouse who incurred them.
Q: What if the debt is only in my spouse’s name?
A: It can still be marital if incurred during the marriage for the benefit of the family. The court may still assign a portion to you.
Q: Can I remove my name from a joint debt after divorce?
A: Not automatically. You may need to refinance, pay off the debt, or obtain a court order requiring your spouse to do so.
Q: What if my spouse runs up credit cards before we separate?
A: If the spending wasn’t for marital purposes, you may argue that the debt is non-marital or seek unequal distribution.
Q: Will creditors honor the divorce decree?
A: No. Creditors are not bound by your divorce. You remain liable for joint debts unless they are paid, refinanced, or settled.
Q: Can I be held in contempt if I don’t pay a debt assigned to me?
A: Yes. Your spouse can file a motion to enforce, and the court may impose sanctions or award attorney’s fees.
Q: Is student loan debt always considered marital?
A: Not always. If it was incurred during the marriage and benefited the household, it’s usually marital. If not, it may remain separate.
Q: How do I protect my credit during divorce?
A: Close joint accounts, freeze lines of credit, monitor credit reports, and work with your Tampa divorce attorney to address debts in the final judgment.
Q: Can debt be used to offset alimony or property awards?
A: Yes. Debt can be allocated in a way that balances the overall fairness of the settlement.
Q: Should I agree to take on debt in exchange for more assets?
A: It depends on the type and amount of debt and your ability to manage it. A Tampa divorce attorney can help you weigh the tradeoffs.
Debt is one of the most overlooked but financially dangerous aspects of divorce. The wrong allocation can leave you paying for obligations you didn’t create or damage your credit long after the marriage is over. Whether you’re seeking to limit your exposure or secure payment for shared debts, a knowledgeable Tampa divorce attorney can help you identify, classify, value, and allocate liabilities with precision. Divorce may end the relationship, but it doesn’t end the financial consequences—unless your debt division strategy is strong, enforceable, and equitable from day one.
The McKinney Law Group: Divorce Services in Tampa That Put Your Needs First
At The McKinney Law Group, we focus on what matters most to you. Whether that’s financial protection, parenting time, or a peaceful resolution, we help Tampa clients pursue their goals with a thoughtful, effective legal strategy.
We help with:
✔ Creating fair property and debt division plans
✔ Negotiating child custody and support arrangements
✔ Explaining the divorce process in plain language
✔ Filing all legal documents correctly and on time
✔ Working to resolve your case efficiently and respectfully
Call 813-428-3400 or email [email protected] for a consultation that puts your needs first.