Common questions about marital debt in Kentucky

Kentucky law, and specifically Kentucky statute KRS 403.190 does NOT create any presumption about marital debt (unlike the presumption of marital property created by the same statute)

Debt is a complicated issue in the context of separating/divorcing couples. We often are asked things such as:

1. What is marital debt?
2. Am I responsible for my spouse’s debt he had before the marriage?
3. Am I responsible for my spouse’s debt he accumulated after we got marriage?
4. I am not on my spouse’s credit card so am I responsible for any of that?
5. My spouse has a mountain of student loan debt am I protected from the debt?

Here are some decisions from the Kentucky courts regarding how determinations are made about debts of the parties:

• What is marital debt?

1. 1. 1. While there is a presumption that all property acquired during marriage is marital, there is no similar presumption as to debts. O’Neill v. O’Neill, 600 S.W.2d 493, 1980 Ky. App. LEXIS 332 (Ky. Ct. App. 1980). Kentucky courts have not followed the same path/presumption that all property acquired during the marriage as being marital when it analyzes claims of marital debt. Because the law does not specifically spell out the presumption language about marital debt like it does for marital property, the courts decline to make that leap. 
   2. Nature of the Debt. All debts incurred during marriage are not necessarily marital debts; consideration should be given to the nature of the debts based upon the receipt of benefits and the extent of participation. Bodie v. Bodie, 590 S.W.2d 895, 1979 Ky. App. LEXIS 492 (Ky. Ct. App. 1979).
      1. The husband in this case testified in court that $14,610.00 was borrowed over a three to four year period during the marriage and expended for marital purposes in order to maintain a life-style higher than possible on his salary. The husband declined to answer specific questions, relative to the nature of the debts, on the advice of his attorney. No cancelled checks, bills or receipts were introduced as evidence. 
      2. The wife testified that she did not sign the bank notes and had no knowledge of the loans. She stated that the parties had not made any large purchases, except for a dishwasher, but that she did know that they were in debt.
      3. The court of appeals agreed with the lower trial court judge in finding that the $14,610.00 amount was not proved as a marital debt.
      4. The appellate court went out of its way to discuss that even though Kentucky law, under KRS 403.190, creates a presumption that all debts acquired during the marriage are marital debts, that presumption does NOT extend to the same analysis of marital debts. In this particular case, the husband was the only party who could produce evidence as to the marital nature of the debts, but essentially refused to testify about them.
      5. There is no Kentucky law precisely on point as to a presumption of marital indebtedness. Although it can be argued that a converse presumption could be implied from KRS 403.190(3), the judicial reasoning used in Herron v. Herron, Ky., 573 S.W.2d 342 (1978), precludes that result. In Herron, the Kentucky Supreme Court disapproved gratuitous presumptions in regard to marital property. Herron, supra, is obviously distinguishable on its facts, but we believe the reasoning is applicable to this situation. The statute itself does not create a presumption as to marital debts and we do not believe one can be judicially implied. All debts incurred during marriage are not necessarily marital debts. Consideration should be given to the nature of the debts based upon the receipt of benefits and the extent of participation. Inman v. Inman, Ky.App.,  [**4]  578 S.W.2d 266 (1979).
      6. The wife in this case had no knowledge of the debts incurred during the marriage and the appellant refused to testify regarding the debts. In such a situation no presumption can be judicially inferred.
   3. Loan made to a party during the marriage
      1. Both the trial court and the court of appeals decided that only the husband was obligated to repay his father a $500,000 loan made during the marriage as the husband did not show definitely that the wife was aware of the extent and nature of the alleged loans. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).
   4. Fault of one spouse in regard to foreclosure
      1. Both the trial court and the court of appeals found a husband responsible for the outstanding indebtedness on the marital residence, as the husband ceased making the payments because he became unemployed after he was fired for failing a mandatory drug test administered by his employer, and the husband failed to appear at the hearing, and offered no evidence to explain his loss of employment, or to demonstrate what efforts he had made to find a new job and thus prevent the foreclosure of the mortgage. Lawson v. Lawson, 228 S.W.3d 18, 2007 Ky. App. LEXIS 183 (Ky. Ct. App. 2007).

• Credit for payments made on mortgage and reduction on debt balance. 

• The husband in a divorce case paid to reduce the mortgage on the marital residence after the divorce decree and up to the final hearing. The trial court and the court of appeals determined that this reduction on the debt was properly added to his equity. Once the parties are divorced, the payments which reduce the indebtedness on the mortgage increase the husband’s equity in the residence, not the marital equity. Thus, it would be unfair not to offset the mortgage reduction paid by the husband. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

• Credit for reductions on marital debt from one spouse’s nonmarital money

• The Kentycky Supreme Court reversed the trial court’s judgment crediting a husband with only the amount of nonmarital property the husband contributed when the husband and wife purchased the marital residence because the record showed that the husband contributed additional nonmarital assets when the parties refinanced their mortgage, but the court held that the husband was entitled to credit for nonmarital assets the husband contributed that reduced the parties’ debt, but not nonmarital assets the husband paid as closing costs. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 (Ky. 2003). The key in this case is to note that the husband was able to prove with evidence presented at trial that he had actually contributed his own nonmarital funds to reducing the marital mortgage debt. 

As it is with marital property, marital debt can be very complicated to navigate without the help of any attorney familiar with issues related to marital debt. 

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