There’s an old saying: “lucky in life, unlucky in love” which refers to the phenomenon of reasonable, successful people who fall in love with people who are constantly prone to poor decisions.
Maybe this odd couple dynamic is what keeps a relationship fun. But, when that relation is fraying the reasonable spouse may be worried about the liability they have due to their spouse’s actions.
Specifically, can a spouse in Illinois be sued for the actions of their spouse or even their ex-spouse?
Liability For Your Spouse If You Are Still Married In Illinois
In Illinois, if you’re still married, your spouse’s misfortunes can also be your own.
If your spouse is sued, the judgment issued by a court of law becomes a marital debt that must be shared by both parties.
‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” (emphasis mine)750 ILCS 5/503(a)
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
So, if your spouse is a walking liability, you may have to, personally, pay on that liability one day. But, it’s not just a simple 50/50 split of the debt from being sued.
The court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property…
(2) the dissipation by each party of the marital property” 750 ILCS 5/503(d)(1)
The court will certainly consider the actions of the spouse that caused the litigation. Doing something negligent certainly causes a “decrease in value of the [total] marital…property.”
Furthermore, a lawsuit’s expense might be seen as a dissipation of assets and thus be refundable to the non-negligent spouse.
“Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
Dissipation can only be claimed if the marriage is undergoing an irreconcilable breakdown. If the parties are still getting along (there is no divorce filed), then you cannot claim dissipation in an Illinois divorce. Also, you cannot claim dissipation for anything that happened over 3 years after you found out about it or 5 years before you filed for divorce.
Can You Be Sued, Personally, Because Of Your Spouse’s Actions In Illinois?
Typically, you cannot be personally sued because of your spouse’s own legal errors. But there are exceptions.
“No creditor, who has a claim against a spouse or former spouse for an expense incurred by that spouse or former spouse which is not a family expense, shall maintain an action against the other spouse or former spouse for that expense except:
(A) an expense for which the other spouse or former spouse agreed, in writing, to be liable; or
(B) an expense for goods or merchandise purchased by or in the possession of the other spouse or former spouse, or for services ordered by the other spouse or former spouse.” 750 ILCS 65/15(a)(2)
So, if your spouse bought something and didn’t pay for it, you can be sued for it in Illinois…even after your divorce.
There is another big exception: medical debts.
“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” 750 ILCS 65/15(a)(1)
“The law is well settled that medical expenses are `family expenses’ under section 15(a)(1) and that a husband and wife are each liable for the medical expenses of the other.” Boswell Memorial Hospital v. Bongiorno, 314 Ill.App.3d 620, 622, 247 Ill.Dec. 421, 732 N.E.2d 137 (2000).
You can be sued for your spouse’s medical debts or your children’s medical debts.
I used to practice bankruptcy law back in the great recession of 2008. I never once saw a judgment against a spouse for his spouse’s medical debts.
Filing For Bankruptcy After Being Sued And Then Getting Divorced In Illinois?
The “unlucky” spouse often promises to file for bankruptcy post-divorce. This is not going to help the other spouse if the debts are first divided between the two parties in an Illinois divorce.
Debts will not be dischargeable in a bankruptcy which are debts “to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;” 11 U.S. Code § 523 Section 523(a)(15)
So, the “unlucky” spouse must file for bankruptcy to discharge the debt from the lawsuit’s judgment before the divorce divides the debt. Otherwise, the spouse that filed the bankruptcy could ask the other spouse to pay them for the debt they didn’t even pay. In reality, Illinois is an equitable division state and would find such an award to be inequitable.
Can You Be Sued For Something Your Ex-Spouse Did In Illinois?
Usually you can’t be sued for anything your ex-spouse did in Illinois…unless it involves your kids.
“Divorce terminates the martial relationship, but it does not destroy the parent-child relationship. In addition, it is well settled that both parents have a continuing duty to support their children after dissolution of the marriage. Thus, while divorce should terminate the liability of one spouse for expenses incurred by the other spouse, there is no reason to exempt non-custodial parents from liability for expenses incurred on behalf of their children. Proctor Hosp. v. Taylor, 665 NE 2d 872 – Ill: Appellate Court, 3rd Dist. 1996
This is an important reason to be sure that your final allocation of parental responsibilities allows you to control decisions about your children’s and thus control the expenses. If you share the decisions (and thus have veto power) you can prevent expenses you might be liable for due to the other parent’s decisions.
Can You Sue Your Husband Or Wife In Illinois?
Yes, you can sue your spouse in Illinois.
“A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1
But most married people who would be willing to sue each other usually get a divorce and resolve the issue they’re suing over via the equitable distribution rule in Illinois.