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16 Aug 2023 Dividing debts in divorce: Mutual carrying obligation and claimability

Divorce is often an emotionally and legally complex event, with a lot involved. Today, we highlight the debt aspect. Many people do face debts within a marriage. A mortgage, a revolving credit, a personal loan, a business loan or, for example, a loan from parents or other family members. Dividing debts correctly and fairly in a divorce is essential. This is not only the case in the private situation, but also when one or both spouses own a business. For example, dividing and settling marital debts correctly also affects the continuity of the business. In this article, we explain how the division of debts in divorce is legally regulated and also give some practical tips.

A joint property regime: the starting point

In the Netherlands, many marriages have the legal system of community of property, or for people who got married after 1 January 2018, the limited community of property, whereby all assets and debts acquired during the marriage are in principle common. When a marriage ends, not only should assets be divided, but debts should also be considered.

Steps in dividing debts:

  1. Inventory: The first and most important thing that needs to be done is to take stock of all the debts that the couple has accumulated (jointly). This includes loans, mortgages, credit card debts and any other financial obligations.
  2. Distinguish between joint and personal Debts: It is essential to determine which debts are considered common and which debts can be considered personal in nature. Debts incurred before marriage or that are explicitly personal can be disregarded in some cases.
  3. Proportional distribution: In a ( limited) community of property, the starting point is that both spouses are jointly and severally liable for debts, regardless of who incurred the debt. This also applies to debts that are only in the name of one spouse. In the context of proportional distribution, the carrying obligation of each of the spouses must be determined.
  4. Separate AgreementsSpouses can make divergent agreements among themselves regarding the division of or the obligation to carry debts. This can be done, for example, through a divorce agreement drawn up with the assistance of lawyers or a mediator.

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Special cases and exceptions:

  • Debts after divorce: Debts incurred after the date the petition for divorce is filed are generally considered personal debts of the spouse who incurred them.
  • Debts with business interests: Debts incurred for business purposes or to finance a business may be more complex to divide and may require specific legal expertise.
  • Request for equal carrying obligation: One of the spouses can apply to the court to establish equal bearing of the debts, even if the debts are initially divided unequally.

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Divide versus establish mutual carrying obligation: 

In principle, spouses who were married in ( limited) community of property are jointly and severally liable for debts incurred before the filing of the petition for divorce both during the marriage and after the divorce. This means that any spouse who is jointly and severally liable for a debt can be held fully liable for the entire debt, regardless of the mutual agreements between the two spouses. If spouses are jointly and severally liable for a debt, the creditor may choose to recover the entire debt from one of the spouses, even if the other spouse defaults. This concept can have significant consequences in divorce cases, especially if one spouse is unable to pay his or her share of the debt. It can lead to complex legal issues and negotiations between the parties involved.

Unfortunately, the law does not allow the court to divide debts that are still pending without the cooperation of the relevant creditor in that division. A creditor will generally not want to cooperate in such a division of the debt. After all, without partition, the creditor has the possibility to recover the entire debt from both spouses. The creditor will be reluctant to give up this extended recourse by agreeing, for example, that the debt is divided by halves and the creditor can only recover 50% from one spouse and the other 50% only from the other spouse.

What the spouses or the court can do, however, is to determine the mutual carrying obligation for the debt of each of the spouses. If that mutual carrying obligation is determined such that each of the spouses bears 50% of the debt, that carrying obligation is fixed between the spouses. The creditor does not have to take this mutual obligation to pay, but the ex-spouses do, of course. As soon as one of the spouses has repaid more than half of the total debt, that spouse can recover the excess he or she has repaid from the other.

However, spouses who pay off more than their carrying obligation on joint debts should take care. A recourse claim for the excess against the other spouse lapses five years from the start of the day following the day on which the claim became due. The spouse can then, from the moment he paid more than he was obliged to on the basis of the determined mutual support obligation, take legal action within five years to recover the overpayment. If the claim is not brought within those five years, it will be time-barred. However, the limitation period can be extended. It is therefore advisable to keep an eye on this period.

Advice from a specialised family law lawyer:

The process of dividing debts and/or determining debt-carrying obligations in divorce can be complicated and emotionally fraught. It is advisable to seek legal advice from an experienced family law lawyer. A lawyer can help you understand your rights, assist you in negotiations, monitor important deadlines and ensure that your interests are adequately protected.

Conclusion

Agreeing on the division of debts in divorce is an important aspect of the divorce process. Dividing debts correctly can lay the foundation for a healthy financial future for both spouses after the divorce. It is vital to seek legal advice to ensure that the division of debts is done fairly and according to applicable laws and regulations. Do you have any questions or would like advice? Then contact specialised family law lawyer mr Angelique van den Eshoff or mr Marion van Acker of SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht

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