When you make a decision to get divorced, then you will soon have to start considering your assets and debts. If you are still making payments on a student loan, or your spouse is making payments, then you will probably have some valid questions on how they will affect you.
Getting a quality education in order to secure stable employment later has many advantages, but it typically carries a heavy burden of student loan debt that will take years to pay off.
Under California Family Code 2641, loans acquired during a marriage for training and education are not typically community property, rather the responsibility of the spouse who took out the loans, but there are exceptions.
Our Los Angeles family law attorneys are often asked how student loan debt will be divided in a divorce. Under California law, the best answer is that it depends on different factors. For example:
- When was the student loan debt incurred?
- Was there a prenuptial agreement about student loan?
- Can you reach an agreement with your spouse on dividing the debt?
Another factor includes the earning power of each spouse. If one spouse very little or no income, and they didn't pursue a career to take care of the household, the family court is not likely to make them pay student loan debt.
In order to give readers a better understanding of what happens to student loan debt in a California divorce, our Los Angeles family law lawyers are providing a review below.
Student Loan Debt before Getting Married
If you and your spouse have about the same amount of student loan debt, then the divorce agreement is pretty straightforward. Each spouse would be responsible for their own student loan and keeping up with the payments.
Student loans don't become a joint debt if you had student loans before you got married. Typically, the debt would be considered separate once divorce is final.
However, if one spouse has more student loan debt, then spouses and their lawyers can negotiate an agreement for dividing the debts and assets in order to make it fair.
In simple terms, any student loan debt you acquired before marriage is separate property and you will be responsible for paying it off.
For example, if you ran up your student loans during 4 years of college up to $100,00 before you married your spouse, then it's your debt alone.
Student Loan Debt After Getting Married
Dividing student loan debt in a divorce becomes more complex if the loans were acquired during the marriage.
There are situations where the spouse with the student loan debt is not the primary source of family income or the one who makes the payments.
Dealing with student loans in a divorce process can get complicated because there are so many different factors involved. For example:
- What exactly was the student loan used for?
- Did the spouse with a student loan earn a degree during marriage?
- What is the earning capacity of each spouse?
If the spouse attending school earned a professional degree, it's considered property in most California divorce cases.
This means if the degree was earned during the marriage, then it's considered marital property. It also means that any debt incurred in order to receive the degree could be marital debt to be divided equally.
California Family Code 2641
A common debt that many people have is from a student loan. A common concern among spouses when getting a divorce is who will be responsible for paying off these loans.
Typically, debts incurred during a marriage are community property, but California has some unique rules related to student loans under Family Code 2641.
It states that upon dissolution of marriage or legal separation of spouses:
- A loan acquired during the marriage for the education or training of a party will not be included in the liabilities of the community for the purpose of division, but will be assigned for payment from the party who received the education and the loan
However, due to the fact the circumstances for which spouses acquire and use student loans will vary, the statute gives further guidance and exception on liability of student loans:
- The assignment of student loans required under this section will be reduced or modified to the extent circumstances render a disposition unjust, including any of the following:
- The community substantially benefited from the education or training of the spouse from the loan;
- The education or training received by the party is offset by the education or training received by the other party for community contributions;
- The education or training enables the party who received it to obtain gainful employment that reduces the need for support could have otherwise been required
How Can I Protect Myself from Paying My Spouse's Student Loan?
If you have decided to get married to someone who has a substantial student loan debt, then you would be very wise to make an agreement before actually getting hooked.
In order to protect yourself from paying for your spouse's student loans, you should consider a prenuptial or post-nuptial agreement.
Reaching an agreement on a reasonable prenuptial financial plan will actually help both of you to thoroughly consider your debts and assets.
If you're already married, but one spouse took on student loan debt to get an education, then you would be wise to consider a post-nuptial agreement.
This would especially hold true in a situation where one spouse took out student loans to pay for a very expensive medical degree, whether it was acquired before or after marriage.
Contact a Los Angeles Divorce Attorney for Help with Family Law Issues
Dividing student loan debt in California can become a complex matter and it would be in your best interest to speak with an experienced family law attorney.
If you are in a situation where you believe your student loans might complicate property division or spousal support, we can help you.
Our California Certified Family Law Specialist has experience dealing with complex divorce related issue about property division and high net-worth individuals.
We represent clients throughout Southern California, including the greater Los Angeles area, Ventura County, and the San Fernando Valley.
Furman & Zavatsky are Los Angeles divorce and family law attorneys located at 15821 Ventura Blvd #690 Encino, CA 91436. Contact our office for a free case consultation at (818) 528-3471.