Defining Marital Debts
Debts are allocated between spouses as part of the property division phase of a divorce in Illinois. To qualify for division, the debt must be classified as "marital," which includes most liabilities incurred during the marriage and before the date of separation -- regardless of which spouse's name is on the debt. All other debts are considered "separate" and remain the responsibility of the spouse that incurred them.
Timing of Charges
If a couple opens a joint credit card during marriage, the debt incurred is typically classified as a marital debt. By contrast, if either spouse has a credit card coming into the marriage, the balance on the card would be considered a separate debt. However, complications can arise if purchases are made during the marriage on a card titled solely in one spouse's name. Here, the court will to look to see who benefited from the purchases. If the cardholder spouse benefitted from the purchase alone, the debt likely would be classified as separate. If the family benefited from the purchase, the debt would be considered as marital.
Any credit card balances classified as marital debt are divided along with other property and debts on the basis of fairness between you and your spouse. It is important to note that this does not necessarily mean the division will be equal, as the court is allowed to consider several factors outlined in state law. These factors include the specific needs of you and your spouse, the length of the marriage, the amount of any spousal support awards and the nature of any custody awards.
Judges have the freedom to order either one or both spouses to take responsibility for a credit card balance. However, Illinois courts are aware of issues that can arise with this type of debt, particularly if only one spouse is listed on the account. By law, the cardholder remains contractually obligated to the credit card company even if the court assigns the debt to the other spouse in the divorce. This in turn could affect the cardholder's credit rating if the other spouse fails to make required payments. To avoid this result, the court may decide to keep the marital debt solely with the cardholder, but then offset the award with a larger share of marital property.