Who pays student loans if a couple gets divorced?

When you marry someone, you marry all of their baggage too–including their debt.

For younger Americans part of the generation graduating college with an average of $29,400 in student debt, the stakes are even greater.

And for adults that go on to earn graduate, law, business or other advanced degrees, the student debt a spouse incurs could amount to hundreds of thousands of dollars.

Pre-marital debt usually stays with the borrower

It’s not the most romantic thing to think about, but in the case the couple ends up getting a divorce before paying all of their debt, dividing up the loans can be a tricky (and uncomfortable) prospect.

Usually, if the student loans were taken out before the couple got married, the debt is considered separate property and stays that way after the divorce.

This means that the person whose name is on the loan is responsible for repaying it (barring a predetermined contractual agreement).

Dividing student debt after divorce

If, however, the loans were taken out while the couple was married, things can get a little more complicated.

According to the Wall Street Journal, in this case, how educational debt is divided can depend on where you live and who benefited from the borrowed money.

If an educational degree is considered marital property, as it is in many states, including New York,  divorce courts have the discretion to divide the property up in a holistic way. This means they could consider contextual issues, such as each spouse’s ability to pay it off, when deciding who has to repay the loans.

In other cases, student loans can  be split down the middle, even if one spouse doesn’t have a high ability to repay the loans.

Plan ahead to avoid surprises

To avoid uncertainty, legal experts recommend developing a pre-nuptial agreement that specifies how student loans will be divided in the event of a divorce.

And of course, it’s important to be honest with your spouse about each other’s student debt and finances, both before and during the marriage, to avoid surprises down the line.