When you divorce, it’s not just the marital assets that must be divided. Most couples have various forms of joint debts that must be portioned out and who incurs that obligation must be determined.
If you or the other spouse have student loans, these loans may be trickier to deal with than others. These loans are usually substantial and take years (if not decades) to pay off.
What Qualifies as Marital Debt?
When you and your spouse divorce, who pays all (or part) of a student loan may depend on a few different things, such as:
· Did you borrow the loan before or during the marriage?
· Do you live in a community property state?
· Was a prenuptial agreement executed before your marriage?
· Did one of the spouses co-sign for the student loans?
· Is there a significant income difference between you and the other spouse
What About Debt Incurred Before Marriage?
The timing of when your ex spouse took out the student loan matters most. In most cases, the following is true:
Any debt incurred before marriage remains yours – After the divorce, any student loan you took on before you got married will always remain yours. The same rule holds for the student loan debt of your former spouse.
Any joint debts after marriage may be considered marital debt – if you or your former spouse took on new student loans (or refinanced a student loan) while you were married, ownership of that debt becomes far more complicated after your divorce is finalized.
Any new student loans that either of you took on after getting married would be considered marital debt, and every state has its way of treating student loans after a divorce.
What is Considered an Equitable Division of Debts?
While the “debt before marriage” and “debt after marriage” marriage rules mostly hold in Arkansas, there is a presumption under the state’s law that an equitable division of marital debts must occur.
If the court finds that one spouse can pay the debts without materially changing their lifestyle, they may be awarded more debt than the other spouse.
In most cases, if you marry someone with student loan debt, it wouldn’t make you liable for their student loans.
What if I Didn’t Sign on Their Loans?
Most all of the contracts for federal and private student loans stipulate that only the spouse that signs the “promissory note” is under a legal obligation to repay the debt.
This rule will typically hold up in a divorce proceeding, however, due to the high amounts of most student debt, you shouldn’t leave this up to chance.
The best thing to do is to consult with an Arkansas divorce lawyer and ensure you get the vital guidance that you need.