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How are student loans handled in a divorce?

Student loans taken out in order to earn a degree are treated much the same as other debts that a couple has accumulated. When that couple enters into divorce proceedings the big question then becomes whether the debt is considered to be separate or community property.

Like other assets- their home, vehicle(s), personal items- student loans are divided in a divorce. This means that even if the loan wasn't one that you used to go to school, the debt can be distributed to both spouses potentially.

Separate property can include assets that were acquired prior to when a person got married or a gift/inheritance from another person. The standard in order to prove that an asset should be considered separate is clear and convincing evidence. If a party can't meet this standard the asset, in our case student loan debt, may be considered community property and be divided up between the parties.

What the student loan was used to pay for can go a long way to aiding a court in determining how the loan should be considered. If the loan was used to pay for books and tuition it's more likely that the debt will be considered the separate responsibility of the spouse who took the loan out. However, if the loan was used to pay for rent on an apartment that both spouses lived in a community debt finding may be more likely.

Another factor that is considered by courts is whether or not the borrower earned a degree and if degree helped the parties increase their collective earning power. If both parties benefited from one spouse taking out a student loan then the chances of it being considered to be community property.

Finally, the earning capacity of both parties can be looked at as another factor to be weighed. If one party earns a significant amount more than the other spouse it's more likely that the debt will be considered to be separate property and not the partial obligation of the spouse who did not incur the debt.

With costs of attending college and graduate school at all time highs, it is extremely important to be advised correctly on how to best present your case to a court. The attorneys at The Law Office of Bryan Fagan, PLLC understand the issues surrounding student loan debt and how they can affect your divorce.


If you have questions regarding divorce, it's important to speak with a divorce lawyer right away to protect your rights. Our divorce lawyers are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, TX, Spring, Cypress, Klein, Humble, Tomball, the FM1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers, Galveston, Brazoria, Fort Bend County and Waller County.