Division of Debt at Divorce

 Posted on September 18, 2015 in Main

When considering divorce, a couple often questions how their assets and property will be divided. While this determination is very important, it is often just as important to consider how the debts of the couple will be divided. In many ways, the division of debt is treated similarly to the division of property. However, there are additional issues to consider when dividing debt between divorcing parties.

Equitable Division

In Illinois, property and debt is divided in a way that is intended to be equitable to both parties. However, equitable division does not necessarily mean both sides will receive an equal share. In making this determination, the court will consider several factors such as the length of the marriage and the financial situation of the parties.

A divorcing couple can avoid having to deal with dividing debt altogether if they agree to pay off all of their debt prior to filing for divorce. While this provides a clean financial break from each other, many couples do not have the financial resources to utilize this option.

When dividing debt, as is the case when dividing property, the parties can form a written agreement assigning each party's responsibility. By coming to an agreement, the divorcing couple can avoid the court ordering the division of debt.

While an agreement is the most desirable outcome, it is not always possible for the parties to agree. If this is the case, the court will have to become involved. Additionally, both parties will be responsible for any loans or lines of credit that they entered into jointly. Still, a party can also be held accountable for debt that is not in his or her name, but that was incurred during the course of the marriage. Under most circumstances, the following types of debt can be subject to division:

Loans that were entered into jointly (like a car loan or mortgage);

1. Credit cards held jointly;
2. Debt of a company owned jointly; and
3. Any credit card debt that was incurred during the marriage.

In general, debts will follow the asset. What that means is, if one party is awarded a vehicle which carries a loan balance, that party will also be responsible for payment of the car loan.

For debts not associated with an existing asset, the court will consider each party's financial situation and earning potential when determining how the debt will be divided. One spouse may be ordered responsible for a debt that is not in his or her name if that spouse is in a significantly better financial position. It is important to note that, even if the court assigns the payment responsibility to one spouse, if the debt was incurred jointly (like by opening a credit card in both party's names), creditors can still pursue action against the other spouse in the event the party responsible does not fulfill the payment obligation.

Help during Divorce

The division of debt and property are significant considerations during a divorce. For more information about these issues, please reach out to a skilled Illinois family law attorney today. At MKFM Law, we provide our experience and knowledge in helping individuals through the difficult process of divorce. Call 630-665-7300 today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000