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How Is Debt Divided in an Illinois Divorce?
A study published by Kansas State University found that arguments about finances are one of the top predictors of divorce. Finding a way to manage money in a way that meets the needs of each spouse can be extremely difficult. This is especially true if one spouse is more of a spendthrift and the other spouse considers saving a greater priority. Often, these financial conflicts end in divorce.
If you are getting a divorce, you may be concerned about how your and your spouse’s debts will be divided. The division of property and debt is often one of the most complicated and contentious aspects of a divorce. Finding a fair way to allocate property and debt often requires help from an experienced divorce lawyer. At Shaw Sanders, P.C., our Kane County divorce lawyers focus on peaceful mediation, but are willing to take cases to trial when necessary.
Marital Debt vs. Non-Marital Debt in an Illinois Divorce
In Illinois, only the marital estate is divided during divorce. The marital estate includes all of the marital debt and property acquired during the course of the marriage. Property and debts acquired before the couple was married are typically not divided and are instead assigned to the original owner.
If your spouse had incurred a great deal of credit card debt before you were married, you are probably not responsible for repaying the debt. However, if your spouse took out a car loan during the marriage, you may still be on the hook for this debt even if the car was not "yours."
Who Is Responsible for Student Loan Debt in a Divorce?
Differentiating between marital and separate debt is not always straightforward. In the case of student loans, educational debt incurred before the marriage took place is typically considered nonmarital property. However, this is not always the case. Illinois courts consider several factors when determining whether or not educational debts are considered part of the marital estate. These factors may include:
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How the money was used
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Who benefited from the money
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At what point in the marriage the debt was acquired
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Tax implications
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Each spouse’s earning power
As of 2026, if the student loans are considered part of the marital estate, they are subject to division according to the rules of equitable distribution. This means that the debt is divided equitably, or fairly, based on each spouse’s income and assets, the duration of the marriage, each spouse’s earning capacity, and many other factors (750 ILCS 5/503).
Hidden Debts in Your Divorce
When you end a marriage, you expect to share assets and liabilities fairly. But sometimes, one spouse may cover up his or her debts. In other cases, hidden credit cards, gambling debt, or obscure personal loans can emerge after the final paperwork.
If you are anxious about unexpected debts in your divorce, a forensic accountant may be able to help. These professionals may look for unusual withdrawals and payments to unknown accounts. If you have hidden debt, an accountant can help you find it ahead of time.
Getting help from a forensic accountant during your divorce can ensure that you are not caught off guard when the process is finalized. Our firm works with a network of professionals so you can get the help you need.
How a Prenup Can Protect You From Marital Debt
A prenuptial agreement lets you set rules before marriage about how to split property and debt in a divorce. For example, you can decide that any debt you bring into the marriage stays yours alone. You can also agree on how new debts will be handled. A well-written prenup can reduce arguments later, saving you precious time and money in a divorce.
If you want to enter into a prenup, you and your spouse will have to disclose all of your assets. Furthermore, the agreement cannot leave one party with unfair burdens. If the agreement is grossly unfair or disclosures were not made, the judge may decide not to enforce it. Make sure you each have your own attorney representing you if you decide to write a prenup.
Can You Divide Debts Without a Trial?
You do not usually need a trial to split debts. Many couples use mediation or negotiation to sort out debts without expensive litigation. In mediation, a neutral third party helps you and your spouse work together. This allows you more control over the outcome, as long as you are willing to cooperate in good faith.
Direct negotiation is another option, usually conducted through each other’s attorneys. This will likely involve making compromises, perhaps agreeing to take on less debt while your spouse gets more property in exchange. Our attorneys can handle negotiations on your behalf and advise you to make sure any proposed offers are fair to you.
Contact a St. Charles, IL Divorce Lawyer
A Kane County, IL divorce attorney from Shaw Sanders, P.C. can protect your rights and advocate on your behalf during property and debt division. Call our office at 630-584-5550 for a free consultation to learn more about how we can help you achieve a fair divorce settlement.
630-584-5550