How Are Marital Debts Divided in a Divorce?

 Posted on February 07, 2018 in Property Division

In a divorce, the couple’s marital assets are not the only thing that has to be divided. Their marital debts, too, must be divided according to the doctrine of equitable distribution. Just like marital assets, most debts accrued during a couple’s marriage are considered to be property of both parties. In a divorce, the court consider a variety of factors, such as each partner’s income and contributions to the marriage, to determine an appropriate way to divide these debts.

Examples of Marital Debts

Marital debt can include:

• The outstanding mortgage on the couple’s home;
• Debt owed on joint credit cards;
• Student debt for education pursued during the marriage;
• Medical debt; and
• Outstanding debt on financed vehicles.

Dividing Debt According to Equitable Distribution

Even if a specific debt was accrued primarily for one partner’s benefit, such as medical bills for one spouse’s treatment or student debt for his or her degree, both partners are liable for it during and after their divorce.

When the court divides marital debt between a divorcing couple, it does not always divide it perfectly in half. Rather, it examines a variety of factors surrounding the debt and each partner’s involvement with it, such as:

• How each partner benefited from the use of the debt;
• Each partner’s ability to repay the debt after the divorce;
• How each partner contributed to the debt. For example, in a case where the couple’s marital debt includes student debt, the court may consider how the non-student spouse provided additional income to the household while the student spouse obtained his or her degree; and
• How the couple’s other marital assets are divided. For example, an individual who receives a larger portion of their marital savings may also receive a larger share of their debt.

Keeping Debts Separate During your Marriage

It is possible to keep the debts you accrue during your marriage separate. This can be done with a prenuptial or postnuptial agreement. For example, you might include in a prenuptial agreement that any student debt that either partner takes on during the marriage will remain separate debt.

Another way to keep debt separate is to maintain separate credit card accounts. When there is only one name on a credit card account, that individual is solely responsible for repaying the debt. This is why many couples split their joint credit card debt and transfer it to two new, separate cards before they begin the divorce process. Dividing their own credit card debt is often far easier than having the court divide it for them.

Work with an Experienced St. Charles Divorce Lawyer

If you are considering filing for divorce, learn more about each part of the process by discussing it with an experienced Kane County divorce lawyer. To get started, contact Shaw Sanders, P.C. today to set up your initial consultation in our office. We can answer all of your questions and help you develop realistic expectations for your divorce case. Reach out to us at 630-584-5550 for assistance.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000