One of the many questions we are often asked by our Family Law clients has to do with the division of assets and debts upon the termination of marriage. Clients often ask: If my spouse took out student loans during the marriage, does that mean I’ll have to pay off half of the debt?
The answer is never simple and it depends on many different factors. When a couple begins the process of divorce, each must disclose assets and debts and designate whether the asset/debt was acquired before marriage or during marriage. The assets acquired prior to marriage are generally considered separate property while assets acquired during marriage are generally considered community property. Degrees earned and student loans taken out before the marriage are generally attributed to the individual and as such would be classified as separate property.
While it is true that most debts that are incurred during a marriage are subject to equal division between the spouses, a debt incurred for education debt may be an exception. Pursuant to California Family Code section 2641, the spouse who takes out the loans can be the one responsible for paying for them, depending on how long ago the loan was taken out, and other facts. For example, if you had a long marriage before your divorce, you might have trouble proving that the debt should remain with your spouse because your spouse could argue that the “community”, in other words, you both, have already benefited. In this case, all of your assets and your income, whether held jointly or by you alone, can be taken to pay off the debt.
Ultimately, how student debt will be divided depends on the particular facts and circumstances incurred during the marriage.