Division of Debt at Divorce

 Posted on February 24, 2016 in Divorce

When a couple makes the decision to divorce, there are always questions about how to divide property and assets. Figuring out how to properly divide assets is important, but it is just as important for a couple to figure out how the couple's debt will be divided.

Dividing debt is similar to dividing assets, however, there are some additional questions that a couple will want to answer before deciding how to divide their debt.    

Will the Debt Be Divided Equally?

Under the Illinois Marriage and Dissolution of Marriage Act, debt is divided equitably between divorcing spouses. However, both spouses need to keep in mind that equitable division does not mean that the debt will be divided equally. A court will determine how to divide debt by weighing certain factors including the length of the marriage and the financial status of each spouse after the divorce.

Is the Court Our Only Option?

Dividing debt can be difficult if a court has to intervene. Couples do have a few options for deciding how to divide their debt, which include the following:

• Pay Off Debt Before Divorcing: Divorcing spouses can avoid dealing with dividing their debt if they agree to work together and pay off their debt before filing for divorce. If a couple has the resources to develop and implement a debt payment plan, this option will provide the couple with a clean financial slate after the divorce; and
• Draft a Debt Assignment Agreement: As with many other issues that a couple must deal with during a divorce, the couple can write a form and agree to assign each spouse a responsibility to certain debt. This option allows the divorcing couple to avoid having the court step in to decide their debt division.

It may not be possible for a couple to pay off debt or come to an agreement about their debt. When it becomes too difficult for the couple to decide on their own then the court will step in and decide for the couple. Regardless of how the debt is divided, both spouses will be responsible for lines of credit and loans the couple opened together. Also, either spouse can be held responsible for any debt obtained during the marriage even if the debt does not have his or her name on it.

Can All of Our Debt Be Divided?

Most of a couple's debt is divisible, and the types of debt that may be divided include:

• Joint loans, such as car loans or a mortgage;
• Debt tied to a jointly owned business; and
• Credit card debt accrued during the marriage.

Do I Have to Pay the Mortgage if I Am Awarded an Asset?

Spouses will want to keep in mind that assets will come with their debts. This means if you are awarded the house in a divorce, you may also be responsible for the mortgage. If you have debts not connected to an asset, a court will consider each spouse's financial situation and earning potential when figuring out how to divide the debt. Therefore, the spouse who will be in a better financial situation may be ordered pay more of the couple's debt. Both spouses should remember that creditors will still be able to pursue both spouses if the debt is not paid in full.

Let Us Help You with Debt Division

Divorce is both a financial and emotional stressor. Couples may find that while they are divorcing they are able to agree on how to divide debt. However, this is not always the case. If you find that you and your spouse cannot decide how to divide your debt, let the skilled DuPage County property division attorneys at Davi Law Group, LLC help. We can help you figure out a strategy for dividing your debt and help your divorce move forward. Please contact us to schedule an initial appointment.

Source:

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