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How Is Debt Divided in Illinois Divorce?

Updated on
November 1, 2019
Article written by
Attorney Kevin O'Flaherty

In this article we will explain the division of debt in Illinois divorces, including “types of debt in Illinois divorce”, “what impacts how debt is divided in Illinois divorce?” and “the process of dividing debt in Illinois divorce”. Most couples think about the division of assets and property, but may forget about the division of debt in a divorce, which is an important financial aspect of divorce.

Types of debt in Illinois Divorce

Types of debt in Illinois Divorce

Debt is included in considerations of marital property. To review, you might be interested in our article “How Is Property Divided in a Divorce?”. As a reminder, marital assets will be divided through the divorce, non-marital assets are the property of one spouse.

Debt that was taken on at some point throughout the marriage is considered shared debt and will be split between the spouses. Anything that either spouse incurred before the marriage is their own debt and responsibility. For example, credit cards that were opened before marriage and are in only one spouse’s name are personal debt, whereas credit cards that were opened by the couple are marital debt. Debt can also be incurred from loans and joint accounts.

What impacts how debt is divided in Divorce?

The state a couple lives in has an impact on how debt is divided and whether it is evenly split or fairly split based on the specific circumstances. Factors courts consider when dividing debt in an Illinois divorce include specific spousal needs, length of the marriage, and which assets and awards each spouse is already receiving. The nature of purchases made on a credit card may also be considered in determining whether they related to the marriage or not.

The Process of Dividing Debt in Illinois Divorce

Illinois is an equitable distribution state, which means that rather than splitting debt 50/50, the debt will be split fairly between the couple. Courts split debt fairly with multiple factors, such as who is most responsible for the debt incurred.  However, debt may be balanced out and made fair through distribution of assets. It is likely that if one spouse receives a particular asset, such as a car, they also receive the debt associated with that asset, such as the car payment.

One of the most important things to remember is that both spouses are still responsible for the debt, and if one fails to make payments, creditors will pursue the other. Therefore, it is often advisable that couples make an effort to pay marital debt before the divorce process so that debts are not as big of an issue in divorce determinations.  

How Is Debt Divided in Illinois Divorce?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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