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What the law says about student loan debt and divorce

When younger couples decide to get married, it's important for them to understand that the future they are facing is decidedly different than the one likely faced by their own parents.

For example, many of them will enter the marriage with a significant amount of student loan debt, a virtual non-issue for prior generations. Indeed, statistics show that 2012 college graduates who took out loans owed an average of $29,400 when they were finally handed their diplomas. These educational debt numbers are even higher for those who went on to pursue advanced degrees.

Given that each spouse could be bringing anywhere from $30,000 to over $100,000 in student loan debt to the marriage, questions naturally arise as to what happens in the event of a divorce.  

While the belief among many people is that individual student loan debt becomes shared student debt upon marriage and in the event of a divorce, this is simply not the case.

In the overwhelming majority of situations, student loan debt incurred before the marriage is viewed as separate property by the courts, meaning that each spouse will remain responsible for their own educational debt after divorcing.

The exact same scenario holds true for those couples who lived together but did not marry.

"It's generally like roommates," said a family law expert at the University of Minnesota Law School. "The roommate doesn't pick up student debt ... It doesn't matter if you're sleeping together."

Understandably, the sudden responsibility of having to make steep student loan payments on a single income can come as something of an unwelcome surprise to the newly divorced, perhaps necessitating a change in repayment terms.

It is important to note, however, that the situation is different when student loans are taken out during the course of the marriage. Depending upon the property division rules in place, a state court may have more options for dividing the student loan debt equitably.

In light of this relative complexity, those mulling a divorce should strongly consider speaking with an experienced legal professional who can explain their rights and options concerning both student loan debt and other important property division matters.

Source: The Wall Street Journal, "Who Is responsible for the student loans after divorce?" Charlie Wells, April 13, 2014

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