There are a variety of financial issues that will need to be addressed during a divorce, including determining how to divide the property a couple owns between the two spouses. However, during the property division process, a couple will also need to consider the debts they owe. Just like the assets a couple owns, the amounts that are owed to creditors will need to be allocated between the spouses. However, it is important to understand how different types of debts may be handled, as well as the factors that may complicate things during or after a divorce.

Division of Secured and Unsecured Debts

It is important to remember that assets and debts do not need to be divided exactly equally. Illinois law requires a “fair and equitable” distribution of marital property. Depending on the decisions made about certain types of assets, each spouse’s overall financial situation, and other factors, the final decisions on how to divide debts may vary. While they work to reach agreements on these issues, a couple will need to consider how different types of debts may be handled.

Balances on credit cards are some of the most common debts that couples will have. Any balances on a joint credit card will typically be considered marital debts, although even if a card was only in one spouse’s name, purchases made using this card while a couple was married will also usually need to be considered during the property division process. Credit card purchases that may not count as marital debts include those that may be considered asset dissipation, meaning that they were made by a spouse for their own sole benefit after the point at which their marriage had broken down beyond repair. Charges that occurred after a couple’s legal separation but before their divorce will also be considered separate property.

Many people are familiar with a prenuptial agreement as a way for couples entering marriage to keep certain assets separate. A postnuptial agreement is less well known, but if a married couple did not sign a prenuptial agreement, a postnuptial agreement could be an option to protect significant premarital wealth or business venture, or to protect one spouse from the other’s debt. It can be created at any time after the start of the marriage, in both good times and in bad. A postnuptial agreement should be something you mutually agree on. Like a prenuptial agreement, it is best to work with an attorney before signing any postnuptial agreement.

What Is Protected in an Illinois Postnuptial Agreement?

Postnuptial agreements can define each spouse’s financial rights and responsibilties, including property ownership, financial responsibilities, spousal maintenance obligations, and life insurance considerations. A postnuptial agreement may be useful if one spouse begins a new business venture during marriage and wants to insulate the other from any business debt incurred or doesn’t want to put the couple’s marital assets at risk if the business were to fail. It can also be used by couples who are not ready to divorce but want to safeguard certain assets; usually ones they individually brought into the marriage. 

A postnuptial agreement does not cover child custody and child support. This includes children brought into the marriage by one or both spouses. Arrangements for custody and child support are only decided during the divorce process.

Getting a divorce can lead to significant financial difficulties for both parties. In addition to addressing the costs of the divorce process itself, each spouse will need to make adjustments as they shift away from combining their incomes and expenses and establish new living arrangements where they will each use their separate incomes to cover their ongoing costs. In some cases, spousal support (which is known as spousal maintenance in Illinois) may be needed to ensure that a spouse will be able to support themselves. While this form of support is not a factor in every divorce, it may be appropriate in situations where one spouse earns a much higher income or when a person is a stay-at-home parent.

While spousal support may be awarded based on the parties’ circumstances at the time of their divorce, these circumstances may change in the future. When a person experiences changes in their life that may affect spousal maintenance payments, they will need to understand the steps that they can take to request a modification of the court’s orders.

Post-Divorce Modifications of Spousal Maintenance

In most cases, spousal support is meant to be temporary. These payments may help ensure that a person who earns a lower income than their former partner will be able to maintain their standard of living and cover their ongoing expenses. However, a person will be expected to become self-supporting in the future, and they may be able to use the payments they receive to pursue education or other opportunities that will allow them to increase the income they can earn.

When addressing issues related to child custody, parents will need to consider multiple different factors. While matters related to children will be a key consideration for parents who are going through a divorce, unmarried couples may also need to determine how they will handle child-related issues in the event of a breakup or any other situation where a child’s parents are not living together as partners. Decisions involving child custody will be set down in a legally-binding document known as a parenting plan or parenting agreement. While much of the focus of a parenting plan will be on how parents will divide parental responsibilities (legal custody) and parenting time (physical custody or visitation), the agreement may also address a variety of other related issues. One important issue that parents may want to include in their parenting plan is the right of first refusal.

Understanding the Right of First Refusal

When parents divorce or separate, they will need to make adjustments to the ways they care for their children. While a parent may have become used to being there to address their children’s needs on a daily basis, they may no longer be able to do so, since the children will be staying with the other parent at least some of the time. However, there may be some cases when a parent may be concerned about who will care for their children if the other parent is unavailable.

In many cases, a person may believe that it would be best for their children to be able to stay with a parent whenever possible rather than being left with a babysitter or sent to the home of another family member. To ensure that parents will be able to provide care whenever it is needed, a couple may include the right of first refusal in their parenting plan. While the right of first refusal is not required by law in Illinois, it may be included if the parents agree on these terms, or either party may ask the judge in their case to grant them the right of first refusal because they believe it is necessary to protect their children’s best interests.

Issues related to children can be difficult to resolve in family law cases, including situations where married couples choose to get a divorce or where unmarried parents will be ending their relationship. Child custody cases will typically address two separate issues. While the allocation of parental responsibilities (sometimes referred to as “legal custody”) covers parents’ rights to make decisions about how their children will be raised, parenting time (also known as “physical custody”) will address where children will live and whether they will spend most of their time with one parent while having visitation time with the other parent. When creating a parenting plan or joint parenting agreement, parents will need to make sure to consider a number of issues that will help them avoid confusion, protect their parental rights, and provide for their children’s best interests.

Considerations for Parenting Time in a Parenting Plan

A divorce decree or child custody order will include a parenting plan that fully details the decisions made about a couple’s children. This plan will include a schedule stating when children will live or spend time with each parent. There are a variety of different ways that parenting time may be divided, but there is no “standard” schedule defined by law. When negotiating a parenting plan, parents are free to create schedules that they believe will be appropriate, allowing them to provide for their children’s ongoing needs while ensuring that the children will maintain close relationships with both parents.

In addition to creating parenting time schedules that will be followed on a daily basis, a parenting plan will also need to address other issues related to parenting time, including: