Over the last two decades, the cost of higher education has exploded in the United States. According to the latest data from Student Loan Hero, Americans collectively hold more than $1.5 trillion in student loan debt. Alarmingly, student loans are starting to cause serious problems in many marriages. CNBC reports that nearly 13 percent of divorcing couples surveyed cited student debt as one of the major causes of their separation. If you are getting divorced and you or your partner has student loans, you need to be prepared for how these debts will be handled in your separation and divorce.
Student Debt May Be Subject to Equitable Distribution in Virginia
Under Virginia law (Virginia Code § 20-107.3), marital assets and marital liabilities are subject to equitable distribution. In the most simple terms, this means that all marital property — potentially including student loans — will be divided in a “fair” manner. On the other hand, separate property is not subject to equitable distribution. Likewise, separate debts are not subject to distribution. If a student loan is deemed to be separate and thus non-marital, it is the sole obligation of the partner who took out the loan. If you and your spouse are getting divorced in Virginia and one or both of you have student debt, you need to determine whether or not those loans are marital debt.
Determining if Student Debt is a Marital Obligation
In determining how to deal with student loans in a divorce, Virginia courts have the authority to consider a number of different factors. In most cases, the most important factor is when the student loan debt was incurred. A loan taken out during the course of the marriage is generally considered to be a marital debt. While there are certainly some exceptions to that rule, there is a presumption that both partners share responsibility for that cost.
Student loans taken out before the marriage began can be more complicated. While they are often considered to be a separate debt, just like with separate assets, there are circumstances in which they could conceivably be “transmuted” into marital debts. Property and debt obtained prior to the start of a marriage is usually separate property, unless there is good cause to show otherwise. With student loans, separate debt may become marital debt if there was an active agreement or if it was refinanced and/or consolidated with other marital debts, among other circumstances.
Contact Our Fairfax Divorce Lawyers Today
At Duff & Kronfeld, P.C., our Virginia family lawyers have deep experience handling issues of debt division and divorce. If you are in a dispute over student loans, we are here to help. To schedule a fully confidential family law consultation, please do not hesitate to contact us today. From our office in Fairfax, we serve communities throughout Northern Virginia, including Fairfax, Loudoun and Prince William Counties.