Contractual Debt and Divorce in Illinois

 Posted on August 17, 2016 in Property Division

During a divorce, one of the things that need to get allocated is the marital debt that the parties have accrued during the marriage. Indeed, it is important to understand debt allocation and how debt allocated during a divorce can be affected by the original contract that created the debt.

Allocation of Debts

The Illinois Marriage and Dissolution of Marriage Act governs the way that property is divided during a divorce in Illinois. Assets are not the only things that need to be divided, but so do any debts that are considered debts of the marriage. Marital debts, like marital assets, will generally be the debts that were accrued during the marriage, however, there are some exceptions. The exceptions are beyond the scope of this article, but a knowledgeable property division attorney can help to determine whether the debt is marital or separate.

Once a debt is classified as a marital debt, it needs to be allocated between the divorcing parties. The Illinois Marriage and Dissolution of Marriage Act requires that the debts be divided equitably, but that does not necessarily mean equally. The court will look at the nature of the debt and take into account a number of factors including the division of assets and the nature of the debt. The judge will focus on fairness when dividing the assets and debts. If the divorcing couple can come to an agreement about the way that property is divided amongst them, then the court will likely approve any allocation that is not seen as too unfair.

The Relationship With Other Contracts

One thing that divorcing couples need to understand is that a divorce agreement will not necessarily release them from any obligations to the original creditor. For example, an article in the Daily Herald online outlines a situation in an article titled “Mortgage Trumps Divorce Agreement.” In the article, an Illinois attorney explains that if you enter a mortgage agreement with your spouse, and during the divorce your spouse agrees to take on the payments, the mortgage lender can come to you if your ex-spouse does not keep up with the payments. In other words, a divorce agreement does not relieve someone of any obligations to creditors even if the ex-spouse is obligated by the divorce agreement to pay the debts.

However, that does not mean that the allocation of debts in a divorce agreement is meaningless. If a creditor is able to get a payment from the spouse that is not obligated to pay the debt by the divorce agreement, then the spouse that paid can go after the ex-spouse for the money that the ex-spouse was supposed to pay. For example, let us say a husband and wife have a credit card, and the husband agrees in the divorce to take on the debt from the credit card. If the (now ex) wife’s wages are garnished due to this debt then she can sue her ex-husband for that money.

Contact Us for Professional Representation

If you are thinking about, or in the process of, a divorce you need to think about how the marital debts will be allocated. Our skilled DuPage County property division attorneys at Davi Law Group, LLC can help to answer any questions you may have.

Source:

http://www.dailyherald.com/article/20160710/entlife/160719952/