Separazione

How debts are divided during separation and divorce

During marriage, spouses usually consider everything in common, dividing earnings and income, sharing debts.
This is regardless of the actual property regime and tax issues, but for the simple sharing of married life.
With separation and divorce everything inevitably changes.
A very particular moment is that of the division of assets, which creates quite a few disagreements.
Usually we are more careful in this phase, perhaps because there are objects with particular value – monetary or emotional – or complex divisions with properties and land.
Instead, we tend to underestimate everything that concerns the debts contracted by the spouses, separately or jointly, and which however still have to be paid.
To know how debts are divided during separation and divorce, you need to have three pieces of information: the marital property regime, who signed the contract and why.
How debts are divided during separation and divorce During marriage, the debts contracted by the spouses affect both of them, regardless of who contracted them and for what purpose.
This is because husband and wife contribute to family needs and if one of them has more expenses to pay there is a decrease in family income, even when the debt is entirely personal.
This is a simple practical consequence, but this does not mean that the debts fall on both spouses.
The law provides that the person who contracted it is responsible for an obligation, with his or her present and future assets.
After divorce or even simply separation, this rule clearly applies.
Each will have to pay for their own debts, without any obligation regarding those of the ex-spouse.
The only possible financial obligation after separation is the maintenance allowance, which in no way concerns debts.
At the same time, however, it can easily happen during a marriage that debts are assumed jointly by husband and wife.
And it is in these hypotheses that both must answer, even after separation and divorce.
We therefore need to understand when this happens.
Separation of assets, who owns the debts When the spouses have opted for the separation of assets regime, the division after separation is extremely simple, even with regard to debts.
Everyone is responsible for debts incurred personally, regardless of the purpose.
Both debts for personal needs and those aimed at satisfying family needs fall on the spouse who signed the contract, without the creditors being able to make claims on the other or on his assets.
With this property regime, debts are shared only when husband and wife have taken on the obligation together, for example by signing for the bank loan and bringing both their assets as collateral.
read also Spouse's debts, how to defend yourself and what are the differences between community property and separation of property What changes with community property What has been said about debts contracted during marriage also applies when there was community property between the spouses, with some exceptions arising from the property regime.
Meanwhile, since there is community of property, both spouses are liable for debts even when the obligation was contracted by only one.
This is because the assets that can be attacked are in community, therefore attackable by the spouse's creditor up to a maximum of 50%.
Furthermore, if the debt was incurred for family needs, the other spouse's responsibility may be greater.
Jurisprudence has considered joint liability between spouses (despite the debt having been contracted only by the wife or only by the husband) in these cases: The debt was contracted for essential interests of the family (such as healthcare benefits for children); it can be assumed that the spouses wanted to share the debt, that one contracted it for the other or made the creditor believe it.
In these cases the debt "shared" during the marriage remains so even afterwards, therefore both spouses are obliged to pay it in full, without prejudice to the possibility of demanding a 50% refund from the other.
It is therefore very important that responsibilities are analyzed during the separation case, to outline the debt positions.
read also Communion of goods: how it works and effects on debts and current accounts

Author: A.W.M.

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