Student loans in a divorce

When a couple gets divorced in Florida the court will order an “equitable distribution” of the martial assets and liabilities. See Florida divorce law 61.075. The court will divide the marital assets and liabilities 50/50 between the couple unless there are factors that would make an equal split inequitable. This can also include student loans in a divorce, debt is subject to equitable distribution as well. Equitable distribution and addressing student loans in a divorce can be complex, you should contact a divorce attorney in Tampa for assistance.

Student Loans in a Divorce: Is the Debt Marital Property

Typically, the first step in an equitable distribution analysis for student loans in a divorce is to classify each asset and debt as either marital or separate property. Only marital property/ debt is subject to equitable distribution by a court; separate property will remain the property of the spouse who owns it. Marital property is typically all debts and property acquired jointly during the term of the marriage. However, the asset or debt does not need to be in both spouses’ names in order to be deemed marital debt. For instance, student loans in a divorce with just one spouse listed as a borrower can be treated as marital property in a divorce.

Division of Student Loans in a Divorce

As a general proposition, student loan debt incurred during the marriage is a marital liability and subjected to a 50/50 split between the parties.  Thus, the debt will be equally distributed between the parties unless there is evidence to support an unequal distribution of the student loan debt. The fact that a non-borrowing spouse will not receive any benefit from the student’s education is not a factor courts can consider when distributing the student loans in a divorce. See Smith v. Smith.

In Rogers v. Rogers, the parties filed for divorce after eight years of marriage. During the marriage the wife incurred over $23,000 in student loan debt to become a paralegal, the husband did not have any student loan debt.  The court ruled that the student loan debt was to be divided equally between the husband and wife, despite the fact the wife did not begin working as a paralegal until after the divorce. Each case is different, if you are inquiring about the facts of a particular situation you should contact a divorce attorney in Tampa.

Unequal Division of Student Loans in a Divorce

Student loan debt is most often used with the expectation that the education will increase the earning and career potential of the student. If the couple gets a divorce the non-student spouse will typically not reap the benefits of the future earnings obtained in large part by the increased education.  However, Florida courts cannot deviate from the 50/50 distribution unless there are some other grounds for an unequal split, including for student loans in a divorce. Distribution of marital assets and debts are governed by Florida Statute 61.075. In order for a court to award an unequal distribution of student loan debt there must be evidence justifying the deviation based on one of the grounds enumerated in the statute.

Divorce Attorney in Tampa

Student loan debt is often a very contentious issue in a divorce proceeding. Student loan debt can be an enormous amount of money and in some cases even greater than a couple’s home mortgage. If you are considering filing for divorce and are concerned about the student loans in a divorce contact us to speak with a divorce attorney in Tampa. We will review the details of your case and provide you with legal advice and information on what you can expect in the event of a divorce. With years of experience in divorce litigation, the divorce attorneys at Florida Law Advisers are prepared to aggressively fight for what is fair in your case. Call us today to schedule a free consultation with a divorce attorney in Tampa.

 

 

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