Illinois Divorce Law...

Illinois Law - At What Date Do Debts Become Separate?

Debts become separate normally on the date the parties physically separate.

In general, the date parties physically separate is the date one party moves out without returning.

However, the court has a lot of discretion in terms of allocating debts between the parties at the time of the property division.

The safe approach is to expect to pay your own debts that you run up after the separation, but also not to encourage your spouse to run up unnecessary debts before the divorce as well.

Note: If your name is on the credit card, you are still legally liable to pay the debt. The court may state that the debt is your spouse's separate liability. But that only settles matters between you and your spouse. That is, if you pay the debt, your spouse will have to reimburse you. But as between you and your credit card company, you are still on the hook.

Cases:

Charles (1996) 219 Ill.Dec. 742, 284 Ill.App.3d 339, 672 N.E.2d 57 (On review, the appellate court determined the awarding of marital assets and debts to be inequitable, and the awards of spousal maintenance and child support to be inadequate. The trial court had ordered the husband to pay child support that was substantially below child support guidelines (of 25% of the noncustodial parent's income, for two children) for no apparent reason. The trial court also did not take into account the husband's dissipation of marital assets in the period after separation but before divorce, and the inadequacy of the maintenance award in enabling the wife to enjoy a lifestyle consistent with the lifestyle she had enjoyed during the marriage. The appellate court reasoned that one party should not be allowed to continue its standard of living while the other is forced to reduce its standard of living substantially, even if the goal of financial independence for both parties is rendered unachievable. The parties had been married for 19 years. Although the wife abandoned her medical studies and acted as the primary caregiver for the parties' two children, the husband established a profitable medical practice, with a net income of $292,000 in the year of the divorce. Although the husband had substantial potential for future income, the wife had only recently graduated college and was without a job. Her expenses were estimated to be $84,000 annually. The husband was ordered to pay $27,000 a year in child support and $33,000 in spousal maintenance, reviewable after three years. The trial court divided marital debts of $345,000 (including several years of tax liabilities, and the husband's income tax) that accrued after the parties had separated. The trial court awarded the wife $49,000 in personal property, and a two-year-old Audi automobile. The husband was awarded two homes, a one year old Nissan Pathfinder automobile, the debt thereon, and the medical practice. On review, the court found that the husband had dissipated marital property. The wife claimed the husband did so by purchasing furniture for himself, spending $116,000 of the marital estate on an extra-marital relationship, liquidating investments valued at $210,000, and incurring interest and penalties on tax debt of $26,000, during the period after separation but before divorce. The trial court also erred in ordering marital assets to be used to satisfy the husband's tax liability in the year of the divorce of $108,000 (entered in March of that year). Marital assets should only have been used to satisfy one-fourth of the liability as only one-fourth of the year had passed upon the judgment for divorce.)

Moll (1992) 174 Ill.Dec. 18, 232 Ill.App.3d 746, 597 N.E.2d 1230 (The court has broad discretion in allocating debts, and considers the reason for the debt, the party who incurred debt, and the situation of the parties).

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