During a Virginia divorce, both the assets and debts of the spouses are totaled and split. This can include student loan debt, which many people in Virginia have incurred and are still paying off when their divorce is initiated. What happens to that student loan debt in the division of assets and debts during a divorce? Who is responsible for the payments? Like most other states, it depends on the situation of the couple at the time of the divorce.

Virginia Equitable Division of Property

Virginia operates as an equitable distribution state for divorce, which means that both the assets and debts incurred during the marriage are split as equitably as possible. This does not mean a 50-50 split, but rather what is equitable in the eyes of the court. Couples in a divorce are encouraged to divide their property on their own, but if they can not come to an agreement on how to split the property, the judge will use a set of factors developed in Virginia law to determine who gets what in the divorce.

Virginia separates assets and debts into three categories during a divorce – marital, hybrid, and separate property. Marital property includes all things purchased, acquired, or earned during the course of the marriage. Hybrid property is anything brought into the marriage by one spouse that was contributed to during the course of the marriage. Separate property is any asset or debt purchased, acquired, or earned prior to the marriage or that was a gift or inheritance to one spouse during the course of the marriage.

Student Loan Debt in Divorce

If the student loan debt was incurred prior to the marriage, the spouse that took on the debt will most likely be responsible for paying it off. The debt is a separate property that was brought into the marriage by one spouse, and as such, that spouse will take that debt with him or her when the marriage is over. All separate property during Virginia divorces, both assets and debts, remain with the spouse that brought the property to the marriage.

In cases in which the student loan debt was acquired after the marriage, the situation can become much more complex. All debt acquired during the course of the marriage is presumed to be marital debt unless one spouse can prove by a preponderance of the evidence that it is separate or hybrid property. Under the law, the spouse claiming that the debt is separate property much show that the debt was incurred in whole or in part for a nonmarital purpose.

The court will often consider the original purpose of the student loan debt, whether the debt continued during the course of the marriage, whether the debt increased the length of the marriage for the benefit of the family, and whether both spouses benefitted from the education obtained by the loan. If the answer is yes, both spouses will likely be responsible for paying off the debt, but if the answer leans the other way, the spouse who did not incur the student loan debt may either be required to pay a significantly smaller portion or be waived entirely from paying off the loan.

Talk to a Lawyer

If you have more questions about student loan debt and divorce in Virginia, contact our office today.