Splitting Debt You Were Unaware Of: Hidden Marital Liabilities

 Posted on August 15, 2025 in Divorce

When we think of divorce (750 ILCS 5/), we usually think of splitting marital assets, but not as much thought goes into splitting marital debt. While the process of dividing marital debt can be difficult, discovering debt one spouse was unaware of can significantly increase the difficulties.

Whether the hidden debt is in the form of credit card debt, an undisclosed personal loan, or even a second mortgage one spouse was unaware of, the division of these debts can have a major impact on the financial future of both spouses. In some cases, the debt can be tax debt from unreported income on the part of one spouse.

Illinois divides marital assets and debt under the laws of equitable distribution, which means that most debts incurred by either spouse during the marriage are subject to division. This can leave an unsuspecting spouse on the hook for financial obligations that were not approved and for which no benefit was garnered.

It is important to know the difference between marital and non-marital liabilities, as well as how you can spot potential red flags during the divorce. Consulting with a Geneva, IL divorce lawyer can be the best step you can take to ensure your financial future is protected to the extent possible.

What You Need to Know About Equitable Distribution and Marital Debt

Equitable distribution means that both assets and debts are divided fairly, but not necessarily evenly. Marital debt usually includes any debt incurred by either spouse during the marriage, regardless of whose name is on the account. There could be exceptions to this rule in some instances.

Suppose one spouse applies for a credit card in his or her name only and uses the card to furnish the family home. In this instance, both spouses would likely be responsible for the debt because both benefited. However, if a spouse opened a credit card in his or her name only and used that credit card to pay for an apartment for a girlfriend or boyfriend (and that could be proven), then the court might decide to make that spouse solely responsible for the debt.  

Non-marital debts are those incurred before the marriage or after the couple has legally separated. Student loans taken out before the marriage or personal credit card debt accumulated before the wedding are likely to belong to the spouse who incurred the debt. There may also be debts excluded by a valid prenuptial or postnuptial agreement.

However, since Illinois law dictates that marital debts are to be divided fairly, the court will consider a number of factors, including:

• Each spouse’s income
• The financial resources of each spouse
• The duration of the marriage
• Financial and non-financial contributions to the marital estate by both spouses
• The ability of each spouse to repay the debt after divorce.
• Whether either spouse wasted marital assets during the marriage
• Whether one spouse incurred debt that offered no benefit to the marital estate, and which the other spouse was unaware of.

Protection Against Creditors After the Divorce

A divorce decree does not stop creditors from pursuing payment from either or both spouses. Spouses are jointly liable for a debt, allowing a lender to pursue one spouse for repayment even when the divorce decree assigns the debt to the other spouse. To protect yourself, close all joint accounts, avoid co-signing any new loans during the divorce, and have your attorney negotiate protective financial provisions in your divorce decree.

Contact a DuPage County, IL Divorce Lawyer

Hidden debt can turn an already stressful divorce into a full-blown nightmare. If you are facing liabilities you did not create or know about, speak to a Wheaton, IL family law attorney from McSwain Rapp Law, LLC. Our attorneys are laser-focused on working diligently to achieve results that restore balance to the lives of our clients. Call 630-581-2877 to schedule your free consultation.