January 10, 2017

Can You Divorce Away Marital Debt?

Divorce Finances

Money and debt are two of the biggest causes of divorce. For many of our clients dividing debt between spouses is one of the most stressful aspects of the divorce process. Parties often disagree as to who should be responsible for paying off debt after the divorce is final.

Debts most commonly have to be divided are:

  • Mortgages;
  • Loans;
  • Credit card balances;
  • Tax obligations; and
  • Judgments.

Is the Debt Marital Debt or Separate Debt?

The first question an attorney will ask is whether the debt is separate or belongs to the marriage. Debt acquired before the marriage and after divorce papers are filed are separate debts. For debts acquired during the course of the marriage, the debt is typically considered marital debt, regardless of which spouse’s name is on the account.

How Will the Debts Be Divided?

If you and your spouse can agree outside of court about the handling of debts, what you agree to will remain in force. This is one way for the parties to retain control over the way their affairs are handled.

If you are able to come to an agreement out of court, it is helpful to have a skilled divorce attorney negotiate and reduce to writing your agreement. This way, you can be sure that your agreement is workable and fair to you.

If you cannot agree, a judge will divide your debts. The judge will take into consideration the same factors used in dividing assets and will strive for an “equitable” division. This includes:

  • The division of assets;
  • The duration of the marriage;
  • Whether either spouse has non-marital assets;
  • The age, health, and incomes of the spouses;
  • Whether one spouse contributed to the increased earning potential of the other; and
  • Which spouse will be the primary custodial parent to children of the marriage.

One thing you must keep in mind is that debt in your name, even if assigned to your spouse in a divorce decree, is still your obligation to pay off in the eyes of your creditors.

Contact a DuPage County Divorce Attorney

The division of debt is a serious undertaking, and you could have to live with the consequences of the division for years to come. It is worthwhile to have the skill and advice of an attorney who can talk to you about your options.

If you are concerned about your division of property in divorce proceedings, contact the skilled Glen Ellyn, IL property division lawyers at Mulyk Laho Law, LLC for an evaluation.