Divorce Property Division: Identifying Debts of the Marriage

 Posted on September 04, 2015 in Property Division

When you and your spouse are going through a divorce, you already anticipate the division of property and assets. However, most people fail to realize that debts are also a major part of this process. Most divorcing couples focus on who gets the house, car, or big screen television; still, they must also consider who handles the mortgage, car payments, and credit card debt. These debts might have been manageable when both spouses were paying the debt down, but it might be much more difficult to pay those debts on one's own.

Fortunately, when it comes to debts, Illinois law has certain provisions that deal with marital and non-marital debts. Under Illinois law, “Neither husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” Therefore, neither spouse will be liable for the debts of the other spouse. Creditors will not be able to go after assets you own when they are going after your spouse.

Exceptions to the Illinois Marital and Non-Marital Debt Provision

There are, however, certain exceptions to this provision. Other sections of the Illinois Family Expense Statute provide that both spouses will be liable for the expenses of the family. This includes expenses incurred by minors or family members under legal disability, as well as educational expenses for children, a house purchased for the family, and even medical, hospital or funeral expenses. Hence, if something is deemed a family expense, even if you did not agree to its purchase, you will be on the hook for the debt.

Generally, if the expense contributes to the general welfare of the family, it will be considered a family expense. Illinois courts have also considered clothing, rent for apartments and even carpet for the family home to be family expenses. However, in most cases, if you took out a loan that paid for some family expenses, that loan might not be considered a family expense.

It is also important to note that you will be liable for any medical expenses your spouse incurred prior to separation. But, you will not be liable for any medical bills your spouse incurs after separation, assuming you never agreed (oral/written) to pay any of those bills.

Contact an Attorney

As you can see, it is difficult to determine if an asset is joint or separate. If a creditor is coming after you for debts acquired during your marriage, but you are now divorced, you should contact an experienced DuPage County family law attorney who knows how these new changes will affect the outcome of your case.

Sources:

http://ilga.gov/legislation/ilcs/documents/075000650K5.htm

http://www.ilga.gov/legislation/ilcs/documents/075000650k15.htm