Q. If my Husband and I divorce, am I stuck with any of his student loan?
Jean, Carlsbad, CA
A. Hi Jean - used to surf in your neighborhood as a youngster
Most likely not.
Upon separation and dissolution of marriage, a spouse's separate loan is assigned pursuant to Family Code section 2627 and 2641. Subject to certain exceptions, the general rule is "[a] loan incurred during marriage for the education or training or a party shall not be included among the liabilities of the community for the purposes of division but shall be assigned for payment by the party."
The exception is the Court's power to divide the education debt differently if it would "unjust" not to, as where the community has "substantially benefited" from the education or the loan. A presumption exists that no such benefit is derived if the is less than 10 years old at the time the divorce is filed but that the community has substantially benefited if the loan is more than 10 years!
If the student loan money was really used to pay for groceries and rent, for instance, the court may equitably divide the it.
Author: Thurman Arnold, III