The Illinois Rights of Married Persons Act

 Posted on March 17, 2015 in Divorce

Debt is often unavoidable for modern families, whether the debt accrues from credit cards, loans, college tuition or other necessary expenses. However, it is important to remember that marital debt is separate and distinct from personal debt. Illinois law recognizes that married persons can retain property acquired before the marriage as nonmarital property. Furthermore, the law allows married persons to acquire property during the marriage that belongs solely to them (property acquired by descent is one example). That distinction can be confusing for couples and for their creditors. Here are the relevant rules set forth in the Rights of Married Persons Act:

1.       Family expenses (including private school tuition and other education-related expenses) may be considered the property of both spouses, or of either them, in regards to creditors. The couple may face a lawsuit separately or jointly.

2.       Suppose that a spouse has incurred a non-family expense. For example, if the spouse uses money he inherited from his parents to take a solo trip to the beach, this would be considered a non-family expense. If the spouse stays at an inn and refuses to pay his bill, the inn owner has a claim against him but not against the other spouse. The only non-family expenses for which a creditor can initiate a lawsuit against the other spouse (i.e., the spouse who did not incur the expense) are:

• An expense that the other spouse agreed to be liable for, if that agreement is in writing; or
• An expense for goods bought or owned by the other spouse, or for services procured by the other spouse.

3.       If a creditor sues the spouse who did not incur the non-family expense, he might be liable to that spouse for costs, expenses and attorney’s fees.

4.       If a creditor is not allowed to sue a spouse, then he is also not allowed to engage in any collection efforts, including informal or formal collection attempts, referring the claim to a collector or agency, or making any representation to a credit reporting agency that the spouse is liable for the claim.

5.       If a spouse has an abortion without the other spouse’s consent (unless the physician certifies that the abortion was necessary to save the spouse’s life), the other spouse is not liable for any expenses incurred.

6.       Similarly, if a minor child has an abortion without both parents’ consent (if both parents have custody), or without the custodial parent or legal guardian’s consent, the parents will not be liable for any expenses incurred. The same exception arises if the physician certifies that the abortion was necessary to save the child’s life.

There are additional rights guaranteed by the statute that are not explained here. If you have any questions about your rights pertaining to marital or nonmarital debt, or anything related to your rights as a married person, contact one of our experienced Kane County family law attorneys today. We can assist those in the St. Charles area.