Divorce in Illinois

Who Pays the Debt in Divorce?

Financial issues are a major contributor to divorce and difficult to sort out during and after the divorce process, so it’s no wonder that the question of “who pays the debt in divorce?” is a common one for attorneys. Divorcing spouses must not only split their assets, they must also split the debt they have run up together during their marriage. Illinois has rules for assigning responsibility for debts between divorcing spouses, and it’s important to know what your rights are and to handle debts correctly so they don’t continue to haunt you even after your divorce is finalized.

The courts decide how to divide marital debts just as they do marital assets. Since Illinois is an equitable distribution state, debt is not necessarily split 50/50. Instead, courts will split debts in a manner considered to be fair and equitable after considering factors such as:

• Who is most responsible for the debt in a divorce?
• What are the needs of each of the spouses?
• What is the length of the marriage?
• What spousal support and custody awards have been given to which party?

These factors may help you understand who pays debt in a divorce. Depending on the circumstances, there are some situations where one spouse may wind up with more debt and receive other marital assets to make the financial picture more equitable.

Unfortunately, just because debt is assigned to your ex-spouse, it doesn’t mean that you will never be responsible. In Illinois, creditors are not required by law to follow the judge’s orders, so should your ex stop making payments on joint debt, the creditors can try to collect from you. If your debt was held jointly, you may wind up responsible for the debt plus interest and penalties. This is a situation you want to avoid. Even if your divorce agreement has provisions to force your ex to pay, going to court to enforce them is expensive.

The laws under the Illinois Marriage and Dissolution of Marriage Act and the process of dividing debt in a divorce equitably are complicated, and making mistakes can be costly, so it can be helpful for divorcing spouses to enlist the services of an experienced divorce attorney. The experienced and compassionate Illinois family-law attorneys at Wolfe & Stec, Ltd. understand that divorce is difficult enough without having to worry about debts, especially those run up by your ex-spouse. We can provide professional guidance to examine your situation and provide specific strategies to protect you and your children from being haunted by debt.

We offer a free consultation to discuss how our attorneys handle divorce cases and find ways to make sure your debt ends when your marriage does.

How Our Divorce Attorney Works for You

The Illinois divorce attorneys at Wolfe & Stec, Ltd., understand how difficult it is for a family to be splintered by divorce, and we know that financial issues such as being stuck with debts you do not deserve make it even tougher. When you have us on your side, we will take the burdens off you by handling all legal aspects of your case so you can focus on rebuilding your life and that of your family. We will:

• Meet with you to hear the details of your divorce and the financial issues you are facing.
• Investigate your individual divorce situation and gather evidence such as from financial records, bills, and documents, tax forms, and credit card and bank statements.
• Utilize qualified experts in forensic accounting and investigation in order to evaluate and analyze all information to make sure all assets and debts are accounted for.
• Make sure all forms are filed correctly according to Illinois requirements and court appearances are made in a timely manner.
• Negotiate with opposition attorneys for a fair settlement.
• Make sure you understand the laws and how they affect your situation and prepare you for any court appearances.
• Take your case to court if necessary and advocate on your behalf.

Problems with debt in divorce can get worse if they are not taken care of promptly — for example, if one spouse keeps running up debt by making purchases on a joint credit card. Our divorce attorneys will take immediate action to make sure you are protected, so call us today.

How is debt divided in an Illinois divorce?

How is Joint Debt Handled in Divorce?

Illinois courts consider many factors in deciding how to split and handle debt in an equitable manner in divorce. In general, if your debt was taken on at some point throughout the marriage, it is considered shared joint debt and will be split between you and your ex. Illinois law (750 ILCS 503) states that divorce courts “shall divide the property without regard to marital misconduct in just proportions” and defines marital property as “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.”

This means that the law divides only property and debts that were acquired during the marriage. If either you or your ex came into the marriage with debt, that debt would still be that person’s responsibility. Courts will also consider who is most responsible for the debt incurred; if one spouse is awarded an asset that has debt associated with it, such as a car with a loan, that spouse will most likely be responsible for making the payments.

The following are some considerations of the courts when splitting debt in divorce:

Marital or Non-marital Debt

In Illinois, debts are classified as “marital” or “separate, or non-marital.” Marital debt includes most debts incurred during the marriage and before the date of separation — regardless of which spouse’s name is on the debt — and these are shared debts that the courts will divide. Debt that either spouse incurred before the marriage is considered non-marital and remains their own personal responsibility.

Type of Debt

In general, if you and your spouse have co-signed for debt during your marriage, the debt is the joint responsibility of both. These types of debt are most often incurred from loans, such as mortgage and vehicle loans, joint accounts, and credit cards. Credit cards and loans that were opened before marriage and are in only one spouse’s name are personal debt; those that were opened by the couple are marital debt.

Balancing Debt

The courts may balance out debt through distribution of assets. If one spouse receives a particular asset, such as a house, they usually also receive the debt associated with that asset, such as the mortgage payment.

Practicality

Practicality is also a consideration in splitting debt. However, because the couple’s assets are divided equitably, the court will often try to balance assets with debts so neither spouse completes the process facing a debt burden that cannot be handled. Debts are often awarded to the person who can pay them, as it would make no sense to drive the spouse with limited income into bankruptcy by burdening them with unpayable debts. Often, if one spouse receives a larger portion of the couple’s assets, that spouse may also be given a larger portion of their debts.

Dividing Debt in Divorce When it Comes to Credit Cards

Who is Responsible for Credit Card Debt After Divorce?

Determining who is responsible for credit card debt after a divorce can become particularly complicated. Some divorcing spouses run up bills on joint credit cards or those that are in their spouse’s name before their partner is aware of it; and there are times when even if your spouse was the one who incurred the credit card debt, you may be held responsible. In addition, creditors may be able to go after you for debts held jointly if your former spouse doesn’t pay.

The following are some considerations when it comes to determining responsibility for credit card debt in a divorce:

• If either spouse has a credit card when coming into the marriage, the balance on the card would be considered a separate debt belonging to that spouse.
• If one of you is just an additional cardholder on the spouse’s credit card, the debt will generally belong to the main cardholder.
• Purchases made on a credit card may be examined to see if they related to the marriage. If the cardholder spouse benefitted from the purchase alone, the debt would probably be classified as separate, but if both spouses benefited from the purchase, the debt would be considered as marital.
• If the card is a joint account, both spouses are still responsible for the debt, and if one fails to make payments, creditors will pursue the other.
• By law, the cardholder owes the debt to the credit card company even if the other spouse is assigned the debt in the divorce. This could affect the cardholder’s credit rating if the other spouse fails to make required payments.

Don’t delay getting legal help to prevent problems such as having your spouse get you deeper into debt.

Our Wolfe & Stec attorneys are aware of the tactics that some divorcing spouses use to avoid responsibility for their debts, and we will take all steps necessary to protect our clients.

How to Protect Yourself When Splitting Debt in a Divorce

It’s always best if you and your spouse can work together to eliminate debt before your divorce, but it is not always possible to do so. Taking the following steps can help:

• Get a Copy of Your Credit Report. Make sure your credit status is good and that your spouse hasn’t run up debt and loans without your knowledge. Consider signing up for a credit fraud protection service to alert you to unknown activity.
• Leave the marriage without any jointly-held debt. Try to pay marital debt before the divorce so that debts are not as big an issue in divorce determinations. If you can, work with your spouse to set a date after which agreed-upon portions of joint debt are to be transferred onto new cards in each person’s name and joint cards are to be canceled. Either pay off the joint cards together or divide the debt already on your joint cards between you and put the debt on the new cards. If you cannot agree, make a list of all joint credit cards and accounts and cancel them before the divorce to prevent your spouse from racking up more debt.
• File documents with the courts stating the debt for both parties. Recording how much debt was held on the date the relationship ended helps prevent your spouse from running up debt that you might wind up responsible for later.
• Keep good records of your own charges after your separation date, since that is when debt on credit cards becomes the responsibility of the spouse who made the purchases. Also, you want to be able to prove what is yours.
• If your debt is overwhelming, you might be able to use joint savings or take a home equity line of credit in your home to help, or even consider filing for bankruptcy. In many situations, it is best to file for bankruptcy together to make sure that neither party gets stuck with the debt and that you discharge your debts before you start separate lives.

Want to Know Who Pays Debt in Your Divorce?

Get a Free Consultation from Our Lawyers

Every divorce is unique, as financial situations, personal property and circumstances differ, and children may be involved. Some couples can work out their debt differences amiably; others fight a bitter war to the end and wind up having a difficult, expensive, and drawn-out contested courtroom proceeding.

Since divorce is so complex and emotionally sensitive and your family’s future is at stake, it is important to have an experienced divorce attorney on your side to provide legal guidance. The skilled Illinois family law attorneys at Wolfe & Stec, Ltd. have helped countless families dealing with divorce. We will fight to protect your spousal rights and assets and guide you through each step of the divorce and post-divorce period.

For a free initial consultation to discuss splitting the debt in your divorce, call our team. Call us at 630-305-0222 today and speak with an experienced and compassionate DuPage County divorce lawyer.