Can You Make Your Ex Pay for Student Loans in Divorce? – Episode 22

Attorney Amanda Hill explains that under California law, student loan debt is generally treated as separate property. This means the spouse who took out the loans is usually responsible for them. However, if a spouse cosigned for the loan during marriage, the situation becomes more complex. From the lender’s perspective, both spouses are legally liable, regardless of what a divorce decree says. To protect the non-borrowing spouse, divorce judgments often include language requiring the borrowing spouse to “hold harmless” the other, ensuring they are not left on the hook if the lender pursues repayment.

Reimbursement may be possible depending on the circumstances. Amanda notes that if the marriage lasted more than ten years and the borrowing spouse has significantly benefited from the degree—such as becoming a doctor with a higher earning capacity—the court may recognize that the community benefited from the education. In such cases, reimbursement can sometimes be ordered. However, Amanda shares that in practice, most spouses agree to take responsibility for their own student loans, particularly when the advanced degree provides long-term financial advantages.

While student loans often remain separate, Amanda highlights that consumer debt—such as credit cards and auto loans—tends to spark more conflict. This is because one spouse may be a spender while the other is more financially conservative, leading to disputes over responsibility for large debts incurred during marriage.

Student loans do not directly determine support, but they do affect the court’s analysis of each party’s finances. Amanda explains that when calculating spousal support, judges must consider both earning capacity and financial obligations. A spouse with substantial student loan payments may have reduced disposable income, which the court must weigh when deciding whether and how much support to order.

If a spouse cosigned on the loans and the borrower defaults, lenders may pursue both parties. Amanda stresses that divorce decrees cannot prevent creditors from collecting against cosigners. In these cases, the non-borrowing spouse may need to return to family court to enforce the divorce judgment and seek remedies if their credit or finances are harmed by the other spouse’s default.

According to Amanda, lenders typically pursue the spouse most likely to pay. For example, if one spouse became a high-earning professional, such as a neurosurgeon, the lender will usually focus collection efforts on that individual. Meanwhile, a spouse who is unemployed or financially limited is less likely to be targeted.

Amanda reassures clients that in most cases, student loan debt remains separate property. To protect themselves, spouses should maintain detailed records of payments and agreements, whether through emails, texts, or written documents. Including clear language in divorce decrees, particularly “hold harmless” provisions, is also essential. Amanda strongly recommends prenups as another way to prevent disputes, ensuring clarity around student debt obligations before marriage.

Amanda notes that under California law, parents are not legally obligated to support children financially once they reach 18 and graduate from high school. Unlike states such as New York, where obligations may extend until age 21, California law does not require parents to cosign or pay for college expenses. If parents voluntarily cosign for loans, however, they are contractually responsible, regardless of divorce.

Disputes often arise when family members provide financial assistance, such as for a house down payment or emergency expenses. Amanda explains that courts scrutinize whether a formal promissory note exists. Without written documentation and repayment terms, courts usually treat family contributions as gifts, not enforceable debts. A signed, detailed promissory note—even better if notarized—can strengthen the argument that repayment is required.

While divorce settlements can assign responsibility for debt, Amanda cautions that creditors are not bound by family court orders. If one spouse defaults, lenders can still pursue both parties if both are legally liable. In such situations, the non-borrowing spouse may need to return to family court to enforce the divorce judgment and seek attorney’s fees or sanctions.

Amanda emphasizes that in most cases, student loan debt remains the responsibility of the spouse who borrowed it, unless both signed. Her advice is to stay informed, keep records, and seek legal protections through divorce decrees or prenuptial agreements. Maintaining financial clarity during marriage and documenting agreements ensures stronger protection in the event of divorce. If you are navigating divorce and worried about financial obligations like student loans, visit kandhlawgroup.com to connect with attorney Amanda Hill.