In my years as a divorce lawyer in Illinois, financial infidelity has been a bigger issue in my divorce cases than actual infidelity. Spending money and incurring debt without the permission of the other spouse is simply a bridge too far. It is one thing to break up with someone…but it is another thing to have to pay their bills after the break up.

Can I Be Sued For My Spouse’s Debts While Married In Illinois?

Spouses are usually safe from being sued for their partner’s debts. “No creditor, who has a claim against a spouse or former spouse for an expense incurred by that spouse or former spouse which is not a family expense, shall maintain an action against the other spouse or former spouse for that expense” 750 ILCS 65/15(a)(2)(emphasis mine)

Debts incurred for “family expenses” are the responsibility of the entire family.

Family expenses are “expenses for articles which conduce in a substantial manner to the welfare of the family generally and tend to maintain its integrity.” Carson Pirie Scott & Co. v. Hyde, 39 Ill.2d 433, 436, 235 N.E.2d 643 (1968) 

Family expense is “one which contributes to the welfare of the family and benefits or maintains its integrity.” Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n, 222 Ill.App.3d 738, 741, 165 Ill.Dec. 162, 584 N.E.2d 341 (1991).

Under these definitions, a family expense could be anything.

Previous Illinois cases have outlined specific family expenses.

“[E]xpenses for the following goods and services have been found to be family expenses: (1) hospital, medical and funeral expenses of a spouse or child; (2) utility bills; (3) clothing and wearing apparel expenses); (4) some; (5) carpeting for the house; (6) rent of family apartment; and (7) wages of a domestic servant.” NORTH SHORE COMMUNITY BANK v. Kollar, 710 NE 2d 106 – Ill: Appellate Court, 1st Dist., 5th Div. 1999

We are probably better off turning to what is NOT a family expense.

A family expense “does not include business expenses, which are incurred merely to secure the means to maintain the family, nor private or individual expenses, which do not affect the collective body of persons under one head constituting a household or family.” Hyman v. Harding, 162 Ill. 357, 360, 44 N.E. 754 (1896)

(A) an expense for which the other spouse or former spouse agreed, in writing, to be liable; or

(B) an expense for goods or merchandise purchased by or in the possession of the other spouse or former spouse, or for services ordered by the other spouse or former spouse.” 750 ILCS 65/15(a)(2)

Beyond “family expenses” spouses are responsible for debts associated with the following:

“(A) an expense for which the other spouse or former spouse agreed, in writing, to be liable; or

(B) an expense for goods or merchandise purchased by or in the possession of the other spouse or former spouse, or for services ordered by the other spouse or former spouse.” 750 ILCS 65/15(a)(2)

How Do I Find Out About My Spouse’s Debt?

People in debt do not like telling others about their debt. You can ask your spouse about their debts. Better yet, pull your spouse’s credit reports. Your spouse should provide you with permission to pull their credit reports.

A “spouse has a legitimate concern in learning about the credit card debt because said debt decreases the value of her interest in the marital property and in plaintiff’s estate, thereby potentially adversely affecting her future financial security in the event of divorce or plaintiff’s death.” Doe v. TCF BANK ILLINOIS, FSB, 707 NE 2d 220 – Ill: Appellate Court, 1st Dist., 1st Div. 1999

If your spouse will not disclose their debts…which you might be responsible for, you are probably on the path to divorce. During the divorce process, your spouse will be forced to disclose their debts.

Responsibility For A Spouse’s Debts After An Illinois Divorce

In a divorce, you will uncover all of your spouse’s debt via discovery.

“Information is obtainable…through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.”  Ill. Sup. Ct. R. 201(a)

But, if the debt is not in your name and you are severing all ties with your spouse via divorce…why would you even want to know about their debt?

If you don’t know about your spouse’s debt, your spouse will be responsible for that debt by including the following language in the Marital Settlement Agreement.

“Unless otherwise stated in this Agreement, each party shall be solely responsible for any and all debts and liabilities in their name and control. Each party shall be responsible for any and all credit card debt currently in his or her name, and they shall indemnify and hold the other party harmless from the same. The party responsible for a debt or liability shall indemnify and hold the other party harmless from the same. Neither party shall incur any debt in the name of the other after signing this Agreement.”

If the parties to an Illinois divorce do not want to each walk away with their respective debts in their own names, they can ask an Illinois divorce court to “divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)

“”marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine)

Debt incurred before the marriage will remain with the spouse who incurred that debt.

[T]he court shall assign each spouse’s non-marital [debt] to that spouse.” 750 ILCS 5/503(d)

The division of the debts shall be made after the court considers the following relevant factors (note, I have replaced the word “property” with “debt” for clarity)

“(3) [debt] acquired by a spouse after a judgment of legal separation;

(4) [debt] excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;

(6) [debt] acquired before the marriage…

(6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage;  to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7) the increase in [amount] of non-marital [debt]…” 750 ILCS 503(a)

Debt in an Illinois divorce does not get split 50/50. Debt gets split equitably in an Illinois divorce.

“The [Illinois Marriage and Dissolution of Marriage] Act does not require an equal division of marital [debt], but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

The person who incurred the debt AND can pay the debt will likely be responsible for the debt after an Illinois divorce.

“Where one party is substantially responsible for the creation of the debt and has a substantially greater capacity to earn money, it is not an abuse of discretion for the trial court to assign the overwhelming majority of debt to that party.” In re Marriage of Werries, 247 Ill. App. 3d 639, 649-51 (1993)

If the party who has to pay the debt didn’t incur the debt, that party will likely “receive[] the bulk of the marital assets because [they] had the duty to repay marital debt.” In re Marriage of Hart, 551 NE 2d 737 – Ill: Appellate Court, 4th Dist. 1990

Typically, debts assigned to one spouse that are in the name of the other spouse will be immediately paid from the liquidation of any assets awarded to the debt-responsible spouse. Otherwise, an ongoing obligation is required…which always leads to more problems.

Am I Responsible For My Spouse’s Debt After Their Death In Illinois?

When a spouse dies, they are no longer responsible for their debt…but their estate is.

Claims get made against the estate…but most creditors come last in getting paid by a decedent’s estate.

The surviving spouse gets paid in a number of ways before any debtor can get paid by the decedent’s estate.

“The surviving spouse of a deceased resident of this State…shall be allowed as the surviving spouse’s own property, exempt from the enforcement of a judgment, garnishment or attachment in the possession of the representative, a sum of money that the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate and an additional sum of money that the court deems reasonable for the proper support, during that period, of minor children of the decedent who resided with the surviving spouse at the time of the decedent’s death. The award may in no case be less than $20,000, together with an additional sum not less than $10,000 for each such child.” 755 ILCS 5/15-1

Individual items bequeathed to a spouse shall not be subject to the deceased’s debts.

“Personal property selected by the surviving spouse or child or specifically bequeathed or directed by the testator not to be sold may not be sold, mortgaged or pledged unless necessary for the payment of claims, expenses of administration, estate or inheritance taxes or the proper administration of the estate.” 755 ILCS 5/19-1

If the spouse’s share consumes all of the decedent’s assets, the creditors are left holding the bag.

“When estate does not exceed surviving spouse’s award.) If it appears to the court that the value of the real and personal estate of a decedent after payment of 1st class claims does not exceed the amount of the surviving spouse’s or child’s award, or both, the court shall order the representative to deliver the personal estate to the person entitled to the award and discharge the representative.” 755 ILCS 5/24-7

This being said, my knowledge of Illinois’ probate law is not as encyclopedic as my knowledge of Illinois’ divorce law. If your spouse has (or will) predecease you, I’ll refer you to a probate attorney.

If you would like to learn more about your spouse’s debt and your responsibility for that debt, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.