Do I Have to Help My Spouse Pay Their Student Loans if We Get Divorced?

 Posted on February 21, 2023 in Division of Property

For many married couples, student loans are an inevitable part of life. Getting an education is an incredibly expensive investment, and when a couple gets married before or during one or both spouses’ years in school, student loans may be taken on during the marriage. But what happens to such a significant amount of debt when a couple decides to get divorced? While the spouse whose education was paid for using student loans may seem like the natural person to take on responsibility for the loans, allocating student debt actually depends on a number of factors.

Who is Responsible for Student Loans in a Divorce?

Illinois law requires divorcing spouses to fairly divide their assets and debts. Fairly does not necessarily mean equally, however, and this is where the details really matter when it comes to student loans. Illinois courts prefer couples to create an asset and debt division agreement without intervention from a judge, but this is not always possible. Even when it is possible, both spouses need to make sure they understand the law, because a judge will need to review any proposed asset and debt division for fairness and equity. Some factors that will need to be considered include:

• Who signed the contract? Student loans may be guaranteed with only one spouse’s signature, but often, both spouses are cosigners on a loan agreement. Even if only one spouse’s signature is on the loan, however, a divorce order could hold both spouses responsible for paying it back.
• When was the debt taken out? If a spouse took out student debt before getting married, the debt will likely be seen as the personal debt of that spouse alone. Although there can be exceptions, assets and debt held by either spouse before marriage usually remain personal property and debt in a divorce.
• Who did the loans benefit? One thing that may influence the allocation of student debt, regardless of which spouse took out the loans and when they did so, is whether both spouses benefitted from the debt. If the debt supported the whole family, including shared marital expenses, while only one spouse was in school, both spouses may be held responsible for paying it back.
• Is there a prenuptial agreement? Many couples sign a prenuptial agreement discussing how any debt taken on during the marriage will be treated in a divorce. If such an agreement exists and is valid, it supersedes state law on debt division.

Meet with a St. Charles, IL Asset Division Lawyer

The topic of student loans in a divorce can be complex and difficult to resolve. If you are considering divorce or have already started negotiations with your spouse, you could benefit greatly from the help of an experienced Kane County divorce attorney with Goostree Law Group. We will not pressure you into taking any particular strategy with your divorce, but instead will support your preferences and give you the full range of options available to you. Call us today at 630-584-4800 to schedule a complimentary initial consultation and learn more.

Source:

https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm