Some people who are getting a divorce may have student loan debt. If this debt was acquired prior to marriage, it is generally considered to be individual property. However, if it was acquired after marriage, the other spouse may be considered to have responsibility for a portion of it since Virginia is an equitable distribution state.
This means the court will divide debt and property based on a number of different factors. For example, for student loan debt, a court may look at how the couple used the money. If the student used all the money on tuition, fees and textbooks, it is more likely that the debt may be considered to belong solely to the student. However, if the couple used it to pay rent or for other marital expenses, it could be considered a shared debt. On the other hand, if one spouse offered extensive support to the student, it might be less likely that the debt will be considered shared.
A court may be less likely to hold a lower-income spouse responsible for the debt, particularly if the spouse took a career break to support the student. Co-signing a student loan could make the spouse equally responsible for the debt.
One issue that may arise in a divorce with any kind of debt is that it may be difficult to compel a person to pay it if it is in the other spouse’s name. Unfortunately, creditors are not bound by the terms of a divorce decree, so they will still pursue whoever carries the debt regardless of what the couple has agreed. A person can take a nonpaying ex-spouse to court, but this costs time and money and still may not guarantee that the debt is paid. People should discuss this with their respective family law attorneys.