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When you divorce and you have student loans, the timing of when you took on the debt matters most. That means:
• Debt before marriage remains yours. When you divorce, any student loan that's you took on before you got married will remain yours — the same goes for your former spouse's debt.
• Debt after marriage is considered marital debt. But if you or your spouse took on new student loans or refinanced a loan while you were married, ownership of that debt gets more complicated in a divorce. Any new student loans either of you took on after getting married are considered marital debt. And each state has its own way to treat student loans in divorce.
To figure out your next move, find the description below that best fits your situation.
One of you co-signed a student loan
If you or your spouse co-signed student debt, the co-signer is still responsible for the debt even if you’re no longer married. This includes co-signing a refinancing loan, along with any loans taken to pay for school.
Co-signing a student loan legally obligates you to repay the debt when the primary borrower can’t. But there are ways to break this bind.
You can refinance in your own name if you qualify; otherwise, find a lender that allows co-signers. If you refinance with a co-signer, look for a lender that offers a fast co-signer release — 12 months is usually the minimum.
Either move will detach you from your former spouse’s debt, or vice versa
You live in a community property state
If you live in one of the following states, you could remain responsible for repaying your spouse’s debt: Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin. California is also a community property state, but it treats student loans separately.
Community property states consider both parties responsible for all debt accrued during the marriage. So you are both technically liable — 50/50 — for any new student loan debt acquired during your marriage, regardless of who borrowed or attended school.
You live in a common-law state
States without community property rules are considered common-law states — also known as equitable distribution states. This means each spouse has a claim to (or is liable for) an "equitable" share of marital property, including debt.
If you can’t agree on your own, a court will decide how best to split the debt, which could be determined by factors like income potential, how student loan funds were used, who was paying off the loans and whether someone earned a degree during the marriage.
One of you is enrolled in an income-driven repayment plan
If you have federal student loans and are enrolled in an income-driven repayment plan, it's best to notify your servicer immediately when you get divorced and submit a new income certification. It could save you money.
When you’re married, an income-driven plan usually combines both spouses’ incomes to determine a monthly payment for the borrower, depending on how you file your taxes. When you divorce, your payment could change since there’s less income to consider.
You’re still not sure what will happen to the debt
Every situation will be different. As with anything else in divorce, if you can come to an agreement with your soon-to-be-ex on how best to divide your debt, it will be easier than getting lawyers involved. But if you do need legal support, a lawyer can provide the best course of action for your unique situation.
If you’re about to get married, consider a prenuptial agreement. If you’re already married, you can get a postnuptial agreement. Either document can specify how the debt would be repaid if the marriage ended, though it would still be up to both of you to follow the agreement.