Marital assets and property are not the only things that are divided between divorcing spouses: the court must also divide any marital debts the couples may have at the time of the divorce. Like the division of assets, a court is also guided by principles of fairness and equity when dividing debts and liabilities. There is more to this inquiry than simply seeing which spouse’s name is on a particular bill: instead, a court must first determine what debts of the parties are marital debts and then divide them between the parties in a fair and equitable manner. So how exactly does a court do this?
The Starting Point: Is it a Marital Debt?
Marital debts are those obligations and liabilities that one or both spouses incurred during the course of the marriage for household or living expenses. This would include (for example) credit card balances reflecting purchases for food, clothing, and gas, loans or leases for cars, medical debts, and other similar obligations. The test used by the court is whether the obligation was incurred during the marriage and for the benefit of the couple: thus, a liability is generally not considered to be a marital debt if it:
- Was incurred before the parties married; or
- Was incurred solely for the benefit of one spouse and did not directly or indirectly benefit the other spouse.
Although the spouse who is listed as the responsible party for a particular debt may have limited relevance in determining whether that debt is marital debt or not, the fact that a particular debt is only in the name of one spouse is not determinative.
Dividing Marital Debts “Fairly and Equitably”
Like with assets and property, spouses can agree between themselves as to what debts and liabilities each of them will assume following the divorce. Absent such an agreement at the time of the divorce or a valid pre- or postnuptial agreement, the task of dividing marital debts will fall to the court. A court can consider a number of relevant factors in determining how to divide marital debt, including (but not limited to):
- Which spouse bears responsibility for the debt (or if both spouses are listed as joint obligors on the debt);
- Which spouse benefited more from the subject of the debt; and
- The relative earning capacity of each of the spouses, the division of property, and other debts and liabilities assigned to each of the spouses.
Seek Competent Representation from an Experienced Divorce Attorney
The division of debt – like the division of marital property – can significantly impact your financial footing once the divorce is complete. A property division that includes too many debts set over to you and/or too few assets awarded to you can leave you in a precarious financial position. A skilled DuPage County divorce attorney can help ensure that you are not overly-burdened with debt that is not yours and that did not benefit you. Contact our Wheaton or Oswego office today for experienced and knowledgeable legal representation.