DIVORCE AND STUDENT LOANS

In a divorce, debt incurred during the marriage is often split equitably (“fairly) between the parties. Student loans, however, are often treated differently. Student loans are incurred to benefit one party, to increase his or her earning capacity, and to give a party an advantage in the job market. A party’s student loans also benefit that party after the marriage has ended. In re Marriage of Spiers is case law in which a wife was ordered to take all of her student loans as her own debt because her degree was earned during the marriage and she would continue to benefit from her degree long after the marriage is over. This gives us an idea of how your Judge may view yours or your spouse’s student loans as well.

Oftentimes, student loan debt is incurred not only for an advanced education, but also for a party to live off of while obtaining that education. Student loans can be applied to your rent, mortgage, car payment or general living expenses. In that case, that portion of the student loans will likely be considered “marital” and be the responsibility of both parties.  

You may be in a situation where student loans were incurred partially before, or entirely before, your marriage. Any debt incurred prior to the date of marriage will likely be considered “separate” property, meaning it will be the sole responsibility of the party whose name it is in. If a party finished his or her degree during the marriage, then only the portion of the debt incurred after the date of marriage will be considered by the Court.

While case law largely indicates that student loan debt will be the responsibility of the person who incurred it, that does not mean that the Judge will not make other allowances to lessen the burden of that debt. For example, it is possible that the Judge could order the party without the loans to take on more of the credit card debt so the spouse with the student loans does not have more debt than he or she can handle.

For a case-specific analysis, contact our office to speak to an attorney.