Student loans cannot be discharged (avoided) in bankruptcy. That is the general rule. However, under some circumstances, student loans might be avoided or reduced if it can be proven that paying all or a portion of the loans would create a hardship on you or a dependent of yours. Most courts which have dealt this with issue apply a three-part test to determine the extent of the hardship necessary.
- Based on your current income, can you maintain a minimal standard of living for you and your dependents while repaying your student loan debt?
- Is your financial situation likely to stay the same for a significant portion of the repayment period of the student loans?
- Have you made a good faith effort to repay your student loans?
Every case is different and you should consult with an attorney knowledgeable with how to apply each of these questions to your particular circumstances.
If you are not able to avoid some or all of your student loan debt, you may qualify to one of several programs offered by student loan creditors, including the Income Driven Repayment Plan program offered by the US Department of Education. If you are able to negotiate a payment plan based on your income, but you still require debt relief for other debts that are likely avoidable, you would be eligible to file your bankruptcy to eliminate the other debt thereby making it less onerous to make the payments on the student loan debt. This would be the result in either a Chapter 7 or a Chapter 13 case. We can assist with determining if your student loan is eligible for one of the payment programs, and counsel you on the advantages of either a Chapter 7 or Chapter 13 filing based on your personal financial circumstances.
Update as of August 24, 2022
Student Debt Relief Plan
The President and the U.S. Department of Education have announced a further extension of the payment deferral plan for federal student loan borrowers to December 31, 2022. Payments will resume in January 2023.
A new student loan relief plan will go into effect soon allowing those with incomes below $125,000 per year to cancel up to $20,000 (for Pell Grant recipients), and $10,000 for all other federal student loan borrowers. A simple application process is in the works. To receive updates on the application process go to studentaid.gov
If after this relief, you still owe some amount on your federal student loan, the Dept of Education plans to create a new income-driven repayment plan that will substantially reduce future monthly payments for lower- and middle-income borrowers.
This program only applies to federal student loans, and not to private student loans. There is no change to your obligations on private student loans.
Please contact us to obtain more information about these new programs.