Am I Responsible for My Spouse's Debts after We are Separated?

Am I Responsible for My Spouse's Debts after We are Separated?

Last updated: November 2004

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.

Question

My husband and I separated more than a year ago.  I’m getting letters demanding that I pay a bill he incurred after we separated.  The creditor says I owe because we’re married.  Is that true?  If we get divorced, can I make him pay this bill?

Answer

The collection agency has a legal basis for saying you’re liable for your husband’s bill.  But you have a legal leg to stand on, too.  You shouldn’t be liable for your spouse’s post-separation debts, and in a divorce you probably wouldn’t be.

Your situation involves two different areas of Illinois family law:  marital property, and the Family Expense Act.  Both laws deal in different ways with trying to figure out what property and expenses a married couple share, and what property and expenses they individually own or are liable for.

The Illinois Family Expense Act makes both spouses liable for “the expenses of the family and of the education of the children.”  The law presumes that both spouses agree to pay for family expenses.

As a starting point, that makes one spouse liable for another’s debts—at least debts incurred after the wedding date.  And that’s the point the collection agency’s coming from:  if you’re married, you’re both liable. 

But it’s not a family expense if there’s no family, and at least some cases there’s not once you’ve separated.

You can try to prove that to the collection agency, by proving you were separated.  But if they won’t take your word for it, you’d have to convince a judge it’s not a family expense.  Your only chance to tell it to a judge, unfortunately, would probably be if you get sued.

In the mean time, the debt can show up on your credit record, since there’s a legal basis—the Family Expense Act—for saying you’re liable.  You could contest that with the credit reporting agency, too, and they’d have to include your version of events in your report if they didn’t delete the debt from your record.

If you filed for divorce, all of your husband’s and your property and debts would be divided up into marital or non-marital property.  The Illinois divorce statute says that marital property is “all property acquired by either spouse subsequent to the marriage.”  That includes both real and personal property, and debts.

Since your husband’s medical bill was incurred after your wedding date, it’s marital property.  In a divorce, martial property gets divided “in just proportions considering all relevant factors.”

The fact that a bill was incurred after you separated would probably be considered a very relevant factor, so that in a divorce the debt would get assigned to your husband as his responsibility. 

But, as with any assignment of debts in a divorce order, that doesn’t stop a creditor from trying to make you pay.  It just gives you the right to use your divorce case as a way to make your now ex-spouse pay, or make him reimburse you if you end up paying.
 

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