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How Is Debt Divided in an Illinois Divorce?
Multiple studies show that disagreements about finances are the top predictor of divorce. Finding a way to manage money in a way that meets the needs of each spouse in a marriage can be extremely difficult. This is especially true if one spouse is more of a spendthrift and the other spouse considers saving money a greater priority. If you are getting a divorce, you may be concerned about how you and your spouse’s debts will be divided. The division of property and debt is often one of the most complicated and contentious aspects of a divorce. Finding a fair way to allocate property and debt often requires help from an experienced divorce lawyer.
Marital Debt Versus Nonmarital Debt
In Illinois, only the marital estate is divided during divorce. The marital estate includes all of the marital debt and property acquired during the course of the marriage. Property and debt which was acquired before the couple was married is typically not divided and is instead assigned to the original owner. If your spouse had incurred a great deal of credit card debt before you were married, you are not responsible for repaying the debt. However, if your spouse took out a car loan during the marriage, you may still be on the hook for this debt even if you did not drive the car. If you and your spouse had previously signed a valid prenuptial agreement that allocates debt and property in the event of divorce, the terms of this agreement are followed.
Student Loan Debt
Differentiating between marital and separate debt is not always straightforward. In the case of student loans, educational debt incurred before the marriage took place is typically considered nonmarital property. However, this is not always the case. Illinois courts consider several factors when determining whether or not educational debts are considered part of the marital estate. These factors include but are not limited to:
- How the money was used
- Who benefited from the money
- At what point in the marriage the debt was acquired
- Tax implications
- Each spouse’s earning power
If the student loans are considered part of the marital estate, they are subject to division according to the rules of equitable distribution. This means that the debt is divided equitably, or fairly, based on each spouse’s income and assets, the duration of the marriage, each spouse’s earning capacity, and many other factors.
Contact a St. Charles Divorce Lawyer
Illinois courts use a property division method called equitable distribution to divide debt and property fairly. However, the courts have discretion to deviate from this method in certain circumstances. A Kane County divorce attorney from Shaw Sanders, P.C., P.C will protect your rights and advocate on your behalf during property and debt division. Call our office at 630-584-5550 for a free consultation to learn more about how we can help you achieve a fair divorce settlement.
Sources:
https://www.forbes.com/sites/jefflanders/2013/12/17/are-student-loans-incurred-during-the-marriage-considered-marital-debt/#7878f2fb3f9b
https://psychcentral.com/news/2013/07/13/money-arguments-are-top-predictor-of-divorce/57147.html
http://www.ilga.gov/legislation/ilcs/documents/075000050K503.htm
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