Thursday, March 12, 2009

DEBTS IN AN ILLINOIS DIVORCE

By: H. Joseph Gitlin

Q: The court ordered my spouse in the temporary or final order to pay certain debts.  Why is the creditor suing me?
A: Temporary orders and the final judgment in a divorce can only affect the obligations of the parties to each other.  The creditor was not a party to your divorce and could not be easily made a party to your divorce.  Therefore the orders of the divorce court will not affect the creditor’s ability to collect the debt owed.  If it was a joint debt, the creditor can seek payment from either spouse, despite any orders of the divorce court.  The divorce judgment or the marital settlement agreement should provide that the party required to pay the debt will indemnify the other party.  If the other party then is required to pay the debt, they would be able to seek reimbursement from the party required to pay the debt in the divorce judgment.

Q: Can I be liable for joint debts?
A: Yes.  When a debt is jointly owed, the creditor may seek part or all of the payment for either or both debtors.  This is referred to as joint and several liability.  Under joint and several liability, liability is not apportioned proportionately among the joint debtors.

Q: Can the divorce judgment or marital settlement agreement require my spouse to pay debts?
A: Yes.  The marital settlement agreement or the divorce judgment can allocate responsibility for marital debts regardless of who incurred the debt.  The divorce judgment, however, does not affect the creditor’s right to collect from the party or parties incurring the debt.

Q: Could I end up paying for debts that are in my spouse’s name?
A: Yes.  The divorce judgment can allocate responsibility for debts without regard to who is the named debtor.  Even if your spouse is the debtor and the divorce judgment requires them to pay the debt, you could still be liable under the Rights of Married Persons Act.  The Act allows a creditor to bring a claim against the property of either party without regard for who incurred the debt if the other spouse agreed to be liable for the debt in writing or the expense is for goods or merchandise purchased by or in the possession of that spouse or former spouse or for services ordered by the other spouse or former spouse.


Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 828-5600