Earlier this week, we began a discussion of student debt and how it is divided in divorce. While loans that are taken out before marriage are often relatively easy to split, debt that is incurred during the marriage is a bit trickier. Technically, that debt can be considered marital property, and in New York and other equitable distribution states, it could conceivably be divided among the spouses.

However, it is important to note that “equitable” is not the same as “equal.” So courts will not just divide the debt down the middle, but will look at each spouse’s circumstances (income, debt, financial history, likely financial future) to determine how much of the loans each should pay. But if the spouses are on similar financial footing, it is likely that the person who took out the loans will be ordered to pay them.

But there is one additional factor that courts may take into consideration: which spouse benefited from the student loan, and whether a professional degree can be considered marital property. In some cases, family court judges will order a degree-holding spouse to compensate the other for support given while the degree-holder was in school. This includes time spent caring for children and the home, working to cover household costs or even delaying their own education.

As this family law blog post indicates, dividing student loan debt can be as complicated as any other aspect of divorce. If you are entering a marriage with student debt or with plans to take on more, a prenuptial agreement may be a good idea. If you are divorcing with debt, speaking with a skilled family law attorney may give you a better idea of how your case could play out in court.

Source: The Wall Street Journal, “Who is Responsible for the Student Loans After Divorce?” Charlie Wells, April 13, 2014