The subject of apportioning or allocating debt between spouses in an equitable distribution case under §20-107.3, which has remained somewhat mysterious heretofore, is elucidated somewhat by the Court of Appeals’s decision in Gilliam v. McGrady, No. 0288-08-2 (Va. App. 03/04/2009). A painting contractor whose wife had a salaried job as a paralegal left his employment taxes unpaid and the debt was still there to divide as negative property at their divorce. So how is it fair to do this – by calling it separate and leaving it with the businessman husband, or calling it marital and dividing it, and if dividing, then how? The unchallenged evidence showed that the husband let this important matter go originally, but the wife, knowing fully about it, went on helping him live beyond their means and willingly participated in leaving the delinquency uncured. So if it’s a matter of reward and blame, should it be allocated to the one who originally let it go, or to both of them who willingly let it continue, accumulating even more interest and penalties? The trial court thought both, but the Court of Appeals had other ideas. (More precisely, the trial court split the original debt 50-50 and the interest and penalties husband 65% and wife 35%). Since the trial judge began with a ruling that the debt should be considered marital because it benefited both the parties, the Court of Appeals said you must consider more factors than that. Who originally incurred the debt is surely a factor, along with the original purpose of the expenditure (i.e., to benefit the business by leaving unpaid that portion of the employees’ salaries which should go to the federal or state government or both). The Court of Appeals says that since it’s illogical to divide positive property and negative property with different burdens of proof, the presumption of all property being marital must apply to debt as well. It had already been held as a factual determination at trial that both parties benefited because they both spent this money that hadn’t been timely paid in taxes. But the trial court reasoned erroneously, the appellate judges say, and should instead have looked at both the benefit the parties got from spending the money and the use that the business got out of this unpaid money (or unpaid labor). No, the Court of Appeals says, the judge should look at the purpose of the original debt and not to who bears responsibility for the later non-payment. The latter treatment ignores the statutory requirement to consider the “purpose” of the debt. The Court of Appeals considers it unfair to allocate any to the spouse who participated willingly in letting it continue unpaid. The appellate court sees the blames as different: the duty violated by the husband was to obey the criminal law and the civil law – avoiding non-payment of federal taxes as well as fulfilling the general duties of an honest person and good citizen to pay all one’s creditors in full. Since husband had both duties but wife had just the general duty, it would be unfair to saddle her with an equal portion of the blame. What the Court of Appeals does affirm is the trial court’s holding that the wife had the burden of proving that the taxes were not marital debt. That lower-court ruling was valid, because if the presumption of marital debt applies to both positive and negative property, that’s the result you get.