Are Student Loans Divided During a Divorce?
In some cases, student loan debt is divided between the divorcing couples, while in others, it is not. Questions about student loans are some of the most common we are asked about property and debt division. Unfortunately, the answer will be different depending on the individual case at hand.
During a divorce, the separating couple must divide all of their property and assets. Illinois is an equitable distribution state which can make property and debt division a little more complicated. While marital property must all be divided, what is considered fair and equitable can change from case to case.
For example, if you and your former spouse have similar student loan debts and both were acquired during the marriage, it may be decided that you are each responsible for your own debt. However, if one person owes more than the other, that debt may be divided between you.
Marital vs. Non-Marital Property
In Illinois, marital property is all property (including debts and liabilities) acquired during the marriage. Exceptions to this basic rule include property that one party received as a gift of inheritance, property acquired in exchange for property acquired before the marriage, and property named as non-marital property in a legally valid prenuptial or postnuptial agreement. Non-marital property is that which is obtained before the marriage and/or after the date of legal separation.
Shared vs. Individual Debt
Generally speaking, any debt acquired before marriage is considered separate debt unless there is a legally valid pre- or postnuptial agreement stating otherwise. Debt obtained after the marriage is typically regarded as shared debt and will be divided during the property division process. If student loan debt is determined to be marital debt, then it will likely be divided between both parties.
The division of property and debt in divorce cases is governed by Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA).
How Is Student Loan Debt Divided?
Because Illinois is an equitable distribution state, the courts will look for a division of both property and debts that is considered fair to both parties. Unlike a home mortgage or shared credit card debt, determining what is equitable when dividing student loans can be more complicated and subjective.
Issues that may be considered when dividing student loan debt include:
- When was the debt acquired?
- Whose name is the debt under?
- Did one spouse co-sign on the loan?
- How was the student loan used?
- Who has been responsible for paying the debt thus far?
- Did the educational program associated with the student loans help one party advance their career or bring more money into the marriage?
- How did the student loan debt affect both parties' contributions to the marriage overall?
The court will also consider other property division issues, including what other debts and assets the couple have and how best to balance both between the two parties.
What to Do if You Are Getting Divorced & Have Student Loan Debt
If you are considering divorce and your spouse has student loan debt, you should speak with an experienced attorney right away. A skilled lawyer familiar with how student loans are handled in Illinois divorce cases can help guide you throughout the property division process and your divorce. Your lawyer can also represent you in negotiations with your former spouse and in court.