James R. Balmforth: Debt and Divorce

Divorce calls for couples to divide their property during divorce. It also requires division of debt.

Research suggests disagreements about money are the leading predictor of divorce in the United States. Arguments about money can sour a marriage and make divorce difficult. When money is an issue during marriage, debt is oftentimes involved.

Common forms of debt carried by many couples include:

Credit cards
Mortgages
Home equity loans
Car loans
Tax liabilities
School loans

In Utah, assets and liabilities are subject to equitable distribution. Just as value acquired by a couple is part of their marital estate, so is debt. Questions arise when debt is incurred from gambling, secret investments or the use of marital funds to support an extramarital affair.

Typically a couple may have a joint account or separate credit cards used for personal and household expenses. Unless it can be otherwise shown, this type of debt is often equitably divided.

If you have debt and are considering divorce, think about the following steps:

Try to eliminate as much debt as possible prior to divorce. It is easier to get a fresh emotional and economic start after divorce if you are not saddled with debt.
Close joint checking accounts at the outset of divorce.
Close unused credit card and other unneeded accounts.
Depending on your long-term objectives, speak with your divorce attorney about reducing your debt load during negotiations for marital assets.

Divorcing Later in Life

Divorcing after many years of marriage is a growing trend with some statistics indicating that the rate of divorce for people over the age of 50 has doubled since 1990. There is even a name for this new trend: gray divorce.

Divorcing later in life can bring a complicated set of circumstances into the process. As people grow older, they often face financial stresses. Divorce places even more of an economic burden on a separating pair who must now run two households instead of one. Emotional ties to a home may make dividing the value of this asset difficult. Significant debt or mortgages can complicate matters.

Children may be grown, so custody will not be an issue, but issues such as health insurance can be a problem for couples who are not yet old enough to receive Medicare. Sometimes couples may agree to live apart pursuant to a Separation Agreement to avoid the expense of health insurance, or the effects of taxes.

Many later-in-life divorces involve a high net worth that calls for a detailed valuation of assets. Businesses grow over time and become more valuable. Retirement accounts and stock plans can increase significantly as the years pass.

Typical items to be divided include:

Home and other real estate
Trust accounts
401(k), Keogh plans, pensions and other retirement plans
Businesses
Bank and stock accounts
Profit-sharing agreements
Investments
Off-shore or foreign bank accounts
Significant collectibles or other personal property

How a Child’s Preference Affects Custody

A child’s preference for living with a parent can affect custody decisions in many states, including Utah. However, while most judges will consider a stated preference, they are still obligated to rule in a way that protects a child’s best interest.

Judges have a great deal of leeway when they make custody decisions. Among the factors they may consider are:

Custody preferences of each parent
Child’s custody preference, but only if they are old enough to fully comprehend the implications of their choice
State of a parent and/or child’s physical and emotional health
Perceived stability and resources offered by each parent
Potential impact on home and social life, including school and community participation
Whether or not parents desire to help sustain a relationship with the other parent
History of domestic violence, if applicable

Although all of these issues are generally considered, the safety of the child is of primary importance in a custody decision.

What’s more, while the desire of the child is always taken into account, the older a child is the greater consideration a preference is given. If a child is 13 years of age or older, their preference is given greater weight since they are considered to be more independent and less likely to be manipulated in their choice. Additionally, siblings are typically kept together, although a judge may separate them if he or she believes it to be in a child’s best interest.

In most cases, children are not compelled to testify in court about their desires to live with a particular parent. Sometimes a law guardian is appointed to interview the child and identify his or her needs and desires, or an “in camera” interview is conducted which records the interview that is later transcribed.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.