It’s a common misconception that you can’t file for bankruptcy for student loans. It is possible to discharge federal and private student loans in bankruptcy, but it’s more difficult than wiping out most other debts. Because of the potential costs and financial impact of bankruptcy, examine your debt relief options before making a decision.
Here’s how filing bankruptcy for student loans works, and how to determine if this is the right choice for you.
How to file for student loan bankruptcy
Discharging student loans comes at the end of the bankruptcy process. Here’s what you need to do first.
1. Find a bankruptcy attorney. While an attorney isn’t absolutely necessary, working with one — especially one with at least some student loan experience — can help you navigate the complicated process more smoothly.
Filing for bankruptcy costs anywhere from several hundred to several thousand dollars, depending on your location and the case’s complexity. Plus, there are attorney fees for the adversary proceeding required to get student loans discharged.
However, you likely won’t qualify for student loan bankruptcy discharge if you can afford an attorney, says Michael Fuller, a Portland, Oregon-based consumer attorney who takes on student loan bankruptcy cases pro bono.
- Legal Services Corporation: Search for local legal aid by ZIP code.
- Student Loan Borrower Assistance: This nonprofit has a list of legal aid organizations by state.
- Massachusetts Student Loan Bankruptcy Assistance Project: A group of attorneys and law firms offering free representation for adversary proceedings.
- Oregon Student Debt: A pro bono student loan organization.
2. File for Chapter 7 or 13 bankruptcy. You must file for bankruptcy before your student loans can be discharged. Your attorney can help determine the type of consumer bankruptcy that’s best for you: Chapter 7 or Chapter 13.
If you’ve already filed for bankruptcy but didn’t attempt to have your student loans discharged, you can reopen the case and argue for them to be cleared.
3. File a complaint to begin the adversary proceeding. Erasing student loans through bankruptcy requires an additional lawsuit known as an adversary proceeding. To kick this off, you — or your attorney, more likely — must file a written complaint outlining your case. From there, the case will be litigated until the judge determines the outcome. You may receive full discharge, partial discharge or no discharge.
How to prove undue hardship for student loans
To discharge student loans via bankruptcy, you will have to prove they pose an “undue hardship” during your adversary proceeding.
The U.S. Bankruptcy Code doesn’t define undue hardship, so bankruptcy courts have different interpretations for its meaning. Most use what’s known as the Brunner test to determine whether bankruptcy filers’ student loans meet the undue hardship standard.
You must prove that you meet all three parts of the Brunner test to get your college debt discharged:
1. Making student loan payments would keep you from maintaining a minimal standard of living based on your current income and expenses. To meet this, you generally must have bare-bones expenses and must have done everything in your power to increase your income, without success.
2. Additional circumstances make it very likely that your financial situation will persist for a significant portion of your remaining loan period. Among other things, you may be able to successfully meet this if you have a serious mental or physical disability, received a poor-quality education or have maximized your income potential in your field.
3. You’ve made “good faith” efforts to repay your loans. You may meet this prong by making some loan payments, attempting to negotiate a payment plan and working to slash unnecessary expenses and increase income.
Different jurisdictions and judges have different interpretations of these standards so your outcome will depend on your location and the judge you get.
Should you file student loan bankruptcy?
While student loan bankruptcy discharge is possible, it’s likely only worth exploring in the following instances:
- You’ve exhausted all payment options. If you have federal student loans, see if you can afford income-driven repayment or qualify for a loan forgiveness program. Private student loans have fewer options for struggling borrowers. Still, call your lender or servicer and ask whether they can temporarily lower your payment or interest rate.
- You’re past-due on your student loans. If you’re current on your payments, you’ll likely have a hard time proving they’re causing undue hardship. Bankruptcy makes more sense in instances of student loan default — especially if you have defaulted on private student loans and your lender is suing you in an attempt to garnish your wages.
- You have no pathway out of default. Federal student loans have options to get out of default, including loan rehabilitation and consolidation. If you’ve defaulted on a loan multiple times, you may have exhausted these options.
These situations are no guarantee a bankruptcy court will discharge your student loans, but it has happened for some borrowers. A study published in the American Bankruptcy Law Journal in 2012 found that, in 207 bankruptcy cases in which debtors included their loans, 39% won full or partial student loan discharges.
If you do decide to file for student loan bankruptcy, talk to a professional first. A student loan lawyer or bankruptcy attorney with student loan experience can help you determine if it’s the best option for you.
It’s entirely the lender’s choice to accept a student loan settlement. They may be more likely to consider it if you can’t afford payments, have loans in default and no way to return them to good standing — the same factors for exploring bankruptcy.
You wouldn’t need to go to court to settle your student loans, though you may want to hire an attorney. However, settlement savings likely wouldn’t be as large because bankruptcy could fully discharge your debt.