Americans are carrying student loan debt well into middle age and sometimes beyond. When couples divorce, their student loan debt will need to be considered, along with all of their debt. How it will be handled, however, depends on a number of factors.
Did You Get the Loan Before or After You Married?
If you took out the student loan before you were married, that debt is generally considered separate, which would make you, alone, responsible for it. That's unless you have a prenuptial or postnuptial agreement in which your spouse agreed to share it or he or she has co-signed on a refinance of the loan that put it in both of your names.
If a person gets a student loan, perhaps to finish one's college education or seek an advanced degree, after he or she has gotten married, division of that debt in divorce can be more complicated. Even if the loan was only in one spouse's name, the other spouse's income may have been used to pay the loan. This is often the case if the spouse with the loan is going to school while the other is working. Further, if some of the money from the loan was used to pay for the couple's housing, then they both benefitted from the money.
Are You in an Equitable Distribution or Community Property State?
Most states are equitable distribution states. Under the laws of these states, if a court is called on to make property division decisions in a divorce, marital property is divided "equitably" between the spouses. This doesn't necessarily mean 50-50. Courts will look at each spouse's ability to pay the debt and other factors like how much the non-student spouse benefitted from the loan.
In community property states, the division is more clear-cut. Courts in community property states divide both marital assets and debts 50-50 between both spouses.
States also vary in whether a degree earned during the marriage is separate or marital property. In New York, for example, any professional degree is considered marital property because it increases a person"s earning potential. Therefore, student loan debt incurred in getting that degree is considered marital debt.
As noted, couples can detail how they want both current and future student loan debt to be handled in a divorce via a prenup or postnup. This can save a good deal of conflict, time and money later on. If you haven't addressed student loan debt in one of these documents, it's essential to discuss it with your divorce attorney to help determine how your and/or your spouse will divide this debt as you end the marriage.
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