Will you Have to Pay Your Wife’s Student Loan Debt in a Divorce?

Many Tampa Bay men want to know what their exposure is to their wives’ student loan debt in a divorce.

By Thor Hartwig, a Divorce attorney in Tampa, Florida.

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There’s a reoccurring theme in modern Tampa Divorce cases and it has to do with student debt. And this shouldn’t be surprising: Federal student loans are about as easy to apply for—and get—as they ever have been.

As a result of this easy access to loans, universities across the United States have been increasing the cost of tuition every single year. In the last 20 years, tuition at public universities has risen by over 200%.

In the last decade student debt has surpassed credit card debt. As of Spring 2018, the national student loan debt hit $1.5 trillion. Trillion. The average bachelor’s degree graduate owes over $30,000 in student loan debt.

And maybe this wouldn’t mean as much if students were graduating with degrees that were pathways to good jobs and high-paying careers. But they aren’t. The prevalence of overpriced liberal arts degrees has made most bachelor’s degrees almost worthless to prospective employers.

And this is an important aspect for many Tampa Bay men contemplating divorce. Because when it comes to divorce, Florida follows the Equitable Distribution approach to dividing marital assets—and debt.

As opposed to Community Property laws, where the court simply adds up both marital assets and liabilities and effectively doles it out 50-50 to the divorcing spouses, Equitable Distribution states have a set of factors for determining how to divide marital assets and liabilities.

In Florida, these factors include:

Contributions to the marriage by each spouse. Including non-monetary ones such as child-rearing and homemaking.
Economic circumstances of each party. Or, in plain English, how much each spouse makes.
Duration of the marriage.
Interruptions in the personal career or educational opportunities by a spouse.
Contributions to the other spouse’s career or educational opportunity.
Desire of a party to maintain sole possession of an asset, such as a business or professional entity.
Marital waste of marital funds or destruction of marital property.
And the ever-subjective catch-all factor of “Any other factors necessary to do equity and justice between the parties.”

But first you must determine what is actually a marital from non-marital asset. This is statutorily defined as, “Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.”

So if one spouse accrued all of the student loan debt before the marriage, then it is likely a non-marital debt. If it is accrued in part or entirely during marriage then it is at least partially a marital debt, if not completely.

This seems cut and dried, but it becomes a bit blurred when a spouse has non-marital student loan debt but uses marital assets and funds to pay the debt down during the marriage.

But going back to the aforementioned factors and how they apply to the original question: Will you have to pay for your wife’s student loan debts?

If it is indeed a marital asset, then the short and dirty answer is: Yes. Most men will be on the hook for at least some portion of their wife’s marital student loan debt.

This could range from a small percentage of the debt to over 50% or more. It just depends on the circumstances of each divorce case and one is always different from the next. The facts in place during the marriage, applied to the above factors, will be the basis for a judge to determine how to slice the student loan debt pie.

When trying to determine if you could be stuck paying a large portion of your wife’s marital student loan debt, ask yourself some of the following questions:

Have you been married longer than 7 years? (Length of marriage = marriage date to the date you file for divorce: There is NO SUCH THING AS A LEGAL SEPARATION in Florida).

Do you make substantially more money than your wife?

Do you own your own business and do you want to retain sole control of it and its assets?

Does your wife not have an established history of working and earning money?

Is she disabled or limited in her ability to work?

Did she support you, financially or otherwise, while you went to college or pursue a professional degree?

Are your student loans already paid off?

Did your wife accrue 100% of her student loan debt during the marriage?

Did she use any of the student loans to help pay for marital living expenses as well as her tuition? (This is common, nowadays, especially while pursuing a professional degree)

Did your wife take out private student loans and did you co-sign?

Do you have kids together and did she stay at home taking care of them?

Did she put her career on hold to take care of the children, or did she not finish her schooling, or delay graduating, because of having kids?

Did you have a prolonged affair that utilized marital funds to wine and dine your paramour?

Did you lose or waste marital funds or assets through negligent behavior such as gambling or drug/alcohol abuse?

The more you answered “yes” to these questions, the higher the chance you could be stuck paying a large percentage of your wife’s student loan debt.

Ultimately, each case depends on the particulars of the marriage and the best way to mitigate potentially being on the hook for your wife’s student loan debt is to reach an agreement and settle before risk going to trial and letting the judge decide, as most Marital Settlement Agreements entered into between divorcing spouses can be enforced.

For example, if your wife has a substantial amount of student loan debt and you and your divorce attorney feel you may be on the hook for a large chunk of it, and you don’t want to be responsible for paying back that student loan debt—which is very difficult to get out of, even in bankruptcy—then you can leverage marital assets to achieve this.

One example is if there is a marital home with equity in it and your wife wants to remain in the home. You could use your share of the equity in the home as an offset of any of her student loan liability. Or you could choose to take a larger share of the credit card debt as an offset.

How you choose to approach this dilemma is largely determined by the facts at hand, and a good Tampa divorce attorney can help you figure out what the potential outcome would be in court, and what courses of action are available to you.

There are other ways to mitigate your exposure to your wife’s student loan debt, but to do so you need to plead for unequal distribution of marital assets and liabilities in your divorce petition.

If you have questions about your own case, then get a consult with a Tampa divorce attorney. Many Tampa Bay divorce attorneys offer free initial consultations and can give you an idea of where you stand.