Assets typically get split 50/50 in a divorce. Debts (the opposite of an asset) also get split 50/50. More typically, the assets get split up in such a manner that the assets are allotted to each party (Mom gets the house and dad gets the equally valued 401k).
Student loan debt is a particular issue because the person who accrued the student loan debt presumably gets the benefit of the education they paid for after the marriage. In fact, under federal bankruptcy law, student loan debt is not dischargeable because it is assumed the acquired knowledge is an asset in your brain that you will always have the benefit of.
In the other district that I’m licensed in, Illinois, student loan debt is always the responsibility of the person with the debt after a divorce. Spouses who co-signed a student loan are even indemnified by the spouse who got the education in Illinois. This “rule” is not based on a specific law but is just a common practice accepted by the legal tradition in the state.
Florida, however, is a different story.
In Florida, if a party accrued the student loan debt before marriage, the student loan debt will be considered non-marital and, therefore, will be the responsibility of the party with the student loan after the divorce.
In Florida, if the party accrued the student loan debt during the marriage, the debt is then considered to be a marital liability and may be divided like any other marital liability…equitably. Adams v. Cook, 969 So. 2d 1185
Equitable distribution is a concept in Florida divorce law that marital assets and liabilities are distributed equally, “the court must begin with the premise that the distribution should be equal” Fla. Stat. Sec 61.075(1)
To have a court order unequal distribution, proper justification must be shown. Feger v. Feger, 850 So.2d 611
So, the court must make a specific finding to award the student loan liability to the student. “The fact that one party will not receive any benefit from the other party’s education because of the dissolution is not a factor to be considered when allocating a marital debt for student loans.” Rogers v. Rogers, 12 So. 3d 288 (Fla. Dist. Ct. App. 2009)
So, the court has to come up with some other kind of specific justification in order to exclusively burden one party with a marital student loan. This is a high burden to meet.
Some of the ways that a court could award the student his or her student debt are:
- Awarding the other party an equally sized marital debt (presumably with an equal interest rate).
- A finding that “The contribution of one spouse to the personal career or educational opportunity of the other spouse.” Fla. Stat. Sec. 61.075(e) will allow an unequal distribution of marital debts. Working and supporting your spouse while they were in school would probably be a good justification.
- A finding that the economic circumstances of the parties are so significant would allow an unequal distribution of marital debts. Stat. Sec. 61.075(b) This would be a stronger argument for a student loan that enabled someone to become a doctor or a lawyer.
- A finding that “interruption of personal careers or educational opportunities of either party.” Fla. Stat Sec. 61.075(d) will allow for an unequal distribution of marital debts. So, the argument that you had forgone your education to aid your spouse’s education may allow you to evade their student loans.
More typically, cases settle through negotiations between their lawyers and assets and liabilities end up divided based on common sense and practicality not via a spreadsheet to determine the exact 50/50 split. Courts subsequently approve these settlements without the detailed findings that are required by a formal court decision (where parties don’t agree so the court has to make the decision).
Contact my Naples, Florida office to schedule a free consultation to determine if you’ll be responsible for you or your spouse’s student loan debt in your ongoing (or possible) divorce.