As every good Charlotte divorce lawyer knows, preexisting individual debt can break up an engagement or lead to divorce. Even when individuals planning to marry disclose their debt to one another, the couple can face many future financial challenges. Today, even people without graduate degrees are finding themselves saddled with serious student loan debt, and people getting married for the second time are entering into new marriages with significant debt from their earlier lives.
The dilemma that many couples are facing involves a moral question: when should a partner reveal a sizable debt during the courtship? And, if one person brings a huge debt into the relationship, who will be ultimately responsible for paying off the obligation? Significant debt may cause the debt-free partner to eventually resent the debtor, as the debt will affect every financial decision the couple makes together.
A great advantage to prenuptial agreements is that they force a couple to discuss finances and negotiate the payment options. If the debtor spouse intends to pay off the debt purely with his or her own earnings, the couple should codify that intent in a legal agreement. Furthermore, any leftover debt that one partner brings into a marriage would legally remain that individual’s debt alone after a divorce.
However, figuring out the finances could still be complicated in the case of a divorce. The debt free spouse’s attorney may make the argument that he or she deserves a refund for payment toward household expenses, even if the debtor spouse were making the loan payments out of his or her salary alone. Furthermore, if the debtor spouse acquires student loan debt during the marriage, some state courts will treat the advanced degree earned as an “asset” of earning power to be divided between the spouses.