Recently a high rate of divorce which is the legal disunion of a marriage by a legal/competent body has been recorded especially amongst the younger generation. In this article we shall see if student loan debt get split in a divorce?
During divorce proceedings all assets and debts are split between the two parties following the law of the presiding state, unless there is a legal prenuptial agreement made before the marriage, the presiding court has full control of the divorce process.
Student loans are considered debt and may or may not be split during the divorce proceedings.
Student loans incurred before marriage are considered personal debts and are not split during the divorce process, however, student loans gotten during a marriage may or may not be split depending on various factors that we shall see, as we get into more details.
Does student loan debt get split in a divorce?
Student loans are a type of loan given to students to help pay for their university education and associated fees such as books, living expenses, and tuition
As said earlier, legally student loan debt acquired before marriage doesn’t count as marital debt: which is any debt incurred during the marriage.
It is recorded as personal debt and doesn’t get divided between the two parties during a divorce.
For example, in a case where two parties get married, with each party acquiring a student loan debt before the marriage, during the divorce process, each party takes responsibility for his or her student loan debt as it was not acquired during the duration of the marriage, hence not considered marital debt except a prenuptial agreement states otherwise.
In a case whereby the student loan was acquired during the marriage, the division of student loans gets trickier.
For example, in a case, where the spouse who has the student loan debt is not the breadwinner of the family and isn’t the one making the loan payment. How the loan is divided is often dependent on the laws of the state in which one resides, as well as which spouse benefited most from borrowing student loans.
In other cases where the student loan was incurred during the marriage but was done solely in one’s spouse’s name and the lender didn’t consider the other spouse’s credit when granting it, it is possible that the other spouse will not be liable to split the debt.
The issue of student loan debt incurred during marriage being split is a tricky situation and varies depending on various factors and circumstances, making it largely situational. i.e each outcome differs.
As the situation is neither black nor white, each result might vary depending on the couple.
There are however some important factors usually considered by the presiding court during the divorce proceedings that help to decide if the student loan debt will be divided or otherwise.
Factors considered in splitting student loans in a divorce
Here are five major factors considered during divorce proceedings of student loan debts incurred during marriage:
1. The earning power of each spouse: When calculating the distribution of assets and debts, the earning power of each spouse is usually put into consideration.
In a case where one spouse has no significant income or earning potential, and has been largely dependent on the other spouse for financial support, the court will be less likely to split the student loan debt or deem it fair for such a spouse to incur part of the student loan debt.
2. The ultimate use of the money: In most cases, student loans acquired are used for tuition payment of school fees, books, and other associated materials.
However, this is not always the case, as some money borrowed may inevitably be used for living expenses and other costs that benefit the entire household.
This is usually taken into account and depending on the findings from the court, the loan may be divided, if discovered that it was used for the benefit of the entire family or the loan may not be split if only one spouse benefitted from its usage.
3. The degree earned from the student loan: If the student loan borrower earned a degree as a result of the debt. It needs to be ascertained whether the degree is considered separate or marital property. This is usually determined by the state in which you live.
In some states, such as New York, a professional degree obtained during a marriage is considered marital property due to its lifetime earning capacity.
Therefore any debt incurred while obtaining what is accounted for as marital property is in most ways considered marital debt.
This means that the student loan debt will get split evenly between the two parties.
And in cases in which the degree is considered personal property, the student loan debt is also considered personal debt and would not be divided.
4. Related prenuptial agreement: Most couples consider prenups as a thing only wealthier couples do to determine how to divide their incomes upon a divorce.
However, this is a big misconception as prenuptial contracts can also settle the matters of student loans in the case of a divorce.
In a case where a prenuptial agreement has stipulated who would be responsible for the student loan debt upon the breakup of the marriage, it could override the laws of the community or state.
5. The presiding state’s laws: While going through a divorce, it is important to know your state’s laws.
Every division of assets and debts is always by the laws of the state in which you live unless you have a legally binding prenuptial agreement.
A state can either be a community property state or an equitable distribution state.
In a community property state, both parties are equally responsible for any debt incurred during the marriage, even if the debt is only in one person’s name.
While in an equitable distribution state, the judge in the divorce court would consider who shall be responsible for repaying the student loans.
Divorce is never an easy process, but you can make it a little less painful by being prepared.
Student loan debt is typically still the responsibility of the person who acquired it. However, as seen above there are various exceptions depending on personal situations and the decision of the court.
Student loan debt division during a divorce is usually a tricky situation.
One should consult a student loan lawyer and consider all possible outcomes before a divorce, so you know what to expect.
Questions frequently asked
1. What is student loan debt?
Answer: Student loans are a type of loan given to students to help pay for their university education and associated fees such as books, living expenses, and tuition.
2. Can one graduate without incurring student loans?
Answer: Yes, one can graduate without student debt, but it requires planning and some sacrifices.
3. Is a spouse responsible for student loans incurred before marriage?
Answer: No, if a student loan is acquired before marriage, it is considered personal debt and the spouse is not liable to pay for it.
4. Can prenups stipulate who pays student loan debt
Answer: Yes, a prenuptial agreement can stipulate who is responsible for various personal debts.