The end of a marriage involves several legal steps and decisions. Determinations need to be made about many issues, including how property will be divided, if spousal support is appropriate, as well as child-related issues if a couple has a family. During the divorce proceedings, spouses may come to agreements on all of these matters. However, they may also argue over who gets what. In such cases, the court will intervene and make decisions on their behalf. When determining how a couple’s assets will be divided, Illinois follows the equitable distribution method. This also means that any marital debt will have to be split fairly. If you are concerned about what will happen to your debt once you are divorced, a knowledgeable divorce attorney can help navigate this complex issue. 

What Constitutes Marital Debt?

There are many reasons for the accumulation of debt. Money is often borrowed to pay for higher education, to purchase properties, or to start a family business. Each spouse may bring personal debt to a marriage, or in some cases, none at all. Marital debt refers to any debts that a couple accrues after they are legally married. Therefore, if one party had significant student loans or credit card balances that he or she racked up prior to the marriage, that would not be considered marital debt. Similarly, any loans or bills that are accrued after the divorce are the responsibility of the spouse who made the purchases or took out the loan.

Under Illinois law, spouses are responsible for each other’s expenses to maintain the household or support the family during the marriage. This can include buying food, clothes, and toiletries, as well as paying rent or mortgage, vehicle costs, and health insurance. If these items are not paid for outright, they may be charged to a credit card. For housing, the mortgage payments would be made through a bank loan.  

Today, Americans are getting married for the first time later in life than ever before, and there has also been an increase in the number of remarriages. As a result, more and more couples are drafting prenuptial agreements. It is understandable to wonder how age and remarriage affect the need for a prenuptial agreement, or prenup, but the answer is quite simple. Those who marry when they are older—including second and third marriages—generally bring more into a marriage. In this context, “more” does not just mean assets and debts. It also refers to obligations for children, spousal support, and other considerations.

A prenuptial agreement can be a valuable tool that allows both spouses to protect themselves and any children from a previous relationship, but only if the document is drafted and executed properly. Many couples operate under the assumption that their prenup will protect them down the road only to find out that there was a flaw that caused the agreement to become unenforceable. In Illinois, the court may set aside a prenuptial agreement for reasons such as:

• Deception or incomplete disclosure: Before you sign a prenup, you must make a full financial disclosure to your partners, and he or she must do the same. While this can be waived, doing so is rarely a good idea. If you or your spouse leave out or “forget” particular debts or assets, the agreement may not have been based on accurate information, and it may be deemed invalid;
• One party was forced to sign: A prenuptial agreement is meant to be a voluntary contract between the parties. If you were impaired by alcohol or drugs or forced to sign under threats of violence, the court may set aside your agreement. An ultimatum—such as threatening to call off the wedding—is not generally considered to be coercion;
• Lack of counsel or proper consideration: Illinois law does not require both parties to hire an attorney before signing a prenuptial agreement, but having a lawyer at least look over the agreement is a good idea. If your spouse has an attorney and you do not, you could be at a serious disadvantage. It is also important for you to have enough time to read, understand, and agree to the terms of the agreement;
• Extreme unfairness (unconscionability): The provisions of your prenup do not need to be equal for both parties, but they cannot be dramatically one-sided either. For example, if your agreement says that in the event of a divorce, you will assume responsibility for all marital debts while your spouse will receive all of the marital assets, the document is not likely to be enforced.

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Prenuptial agreements have gotten a bad rap for many years. Many hold the false belief that prenuptial agreements are only for celebrities or couples who do not believe in the longevity of their marriage. The reality is that a prenuptial agreement is a valuable legal tool as well as a great way to plan for a couple’s future. Prenups are not only a valuable tool if a marriage ends or one of the spouses passes away, but are also a good way to hammer out the details of how finances will be managed within the marriage.

Prenuptial Agreements Especially Popular with Younger Crowd

A survey conducted by the American Academy of Matrimonial Lawyers suggests that the younger generation of married couples may be more likely to use prenuptial agreements than the older generations. In fact, of the total attorneys surveyed, 51 percent reported an increase in the amount of millennials requesting prenups within the last three years.

Getting engaged to be married is a joyous time for any couple. In the midst of sharing pictures of the ring, scouting out locations for the wedding, and celebrating with friends and family, couples are also faced with a hard choice: Should they create a prenuptial agreement?

A prenuptial agreement, also called a prenup or premarital agreement, is a legally-binding agreement that a couple signs before getting married in order to protect each spouse's financial interests. Some people incorrectly assume that prenuptial agreements are only appropriate for celebrities, the extremely wealthy, and those couples who do not think their marriage will last.

Plan for the Worst

Many couples, if not most, decide to combine their finances after they get married, effectively sharing their property and income. There may be situations, however, in which a spouse wishes to keep some of his or property separate even after he or she gets married.

Illinois Law on Marital Property

Illinois takes a very broad view of marital property. With a few exceptions, any asset or debt that is acquired by either spouse after the marriage becomes marital property. Assets or debts acquired before the marriage or that qualify as the mentioned exceptions are considered non-marital property. Non-marital property is not subject to division during a divorce, but assets that began as non-marital can become marital property if they are commingled.