Prenups and Student Loan Debt

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Stanley Tate

#1 Student Loan Lawyer

Updated on October 6, 2022

When couples prepare for marriage, they often have concerns about how their student loan debt will affect their partner. Prenuptial agreements are a potential solution, with many couples using them to prepare for their financial future. Read on to learn whether or not a prenup can help you and your partner manage student loan debt.

How does marriage affect student loan debt?

If you or your partner have taken out student loans before getting married, this debt will likely be considered separate debt. As with all separate property, each of you will be responsible for paying off your own debt, even in the event of a divorce.

This is not always the case for student loan debt acquired during a marriage. In the community property states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin — student loan debt may be viewed as marital debt. In other words, the debt is jointly owed. If you separate from your partner, a court may hold you responsible for paying off at least a portion of your spouse’s student loan debt.*

Related: Are Student Loans Community Property?

Even if you don’t live in a community property state and your student debt remains separate, your marriage could still impact your ability to make your monthly payments, especially if you rely on an income-based repayment plan. If you file taxes jointly, your spouse’s income will cause your monthly payments to increase. And if you file a separate return, your tax bill may be higher.

Related: How Income-Driven Repayment Plans Work

Due to the challenges that state laws and high amounts of student loan debt present, many couples opt to create a prenuptial agreement to put the division of assets and debts into their own hands.

* Although a judge can enter an order that forces you to repay your spouse’s federal or private student loans, the lender won’t come after you for the debt. They’ll continue to pursue your spouse. But if you fail to make the required student loan payments, your spouse can return to court and ask the judge to hold you in contempt of court for failing to pay. Read more about divorce and student loans.

How do prenups help couples manage student loan debt?

A prenup is a contract between two parties who plan to get married. The contract outlines a couple’s plans for what happens if something goes wrong. Prenups can be helpful if you plan to marry someone with student loan debt or if one or both of you plan to take out student loans while married.

A prenup might describe who agrees to pay off which debts or how marital property would be divided in the event of a divorce. A similar agreement created after the finalization of a marriage is called a postnuptial agreement.

Couples who choose to create a prenup often do so to protect themselves or their partner from taking on unexpected debt. Without a prenup or postnup, the division of assets and debts following a divorce will be determined by state laws, such as community property laws.

Related: How Does Biden’s Student Loan Forgiveness Work?

Can a prenup protect against student loan debt?

A prenup can help protect you from becoming responsible for your spouse’s student loan debt. For example, if you made payments on your partner’s student loans from a joint account checking account, a lender can come after you for further payments, even after divorce. The lender may claim that you accepted responsibility for the loan when you made these payments. In this instance, a prenup stating that only your partner is responsible for the remaining debt can protect you.

If you or your partner take out private loans while married or live in a community property state, you or your spouse may be on the hook for each other’s student loans. By signing a prenup before the marriage, you can ensure that certain debts will be handled separately, regardless of state laws.

Is a prenup right for me and my partner?

Nuptial agreements allow couples to exclude debts and assets from marital property, and instead make their own determinations about how those things should be divided. Whether a prenup is right for you depends on how you plan to divide financial responsibilities.

A prenup is right for you if you or your partner:

  • have been married before

  • have children

  • have significant differences in earning potential, wealth, or debt

  • have or are expecting an inheritance, or plans to provide an inheritance to children from a previous relationship

The type of debt you already have — or plan to take on during the marriage — may also influence your decision to establish a prenup. If any of a married couple’s loans are eligible for loan forgiveness, they may feel more comfortable paying these off together rather than agreeing to tackle them separately.

If you and your partner agree that you will each be responsible for your own student debt, then a prenup will ensure that neither party is saddled with unexpected debt.

Bottom Line

Dealing with debt is never an easy task, especially when marriage is involved. Before you take that next big step, speak with a student debt lawyer or a family law attorney. They can help you decide if a prenup is the best choice for you and your partner. Hello Prenup can also help you build a custom prenup tailored to your unique situation. Their services start at $599 and are available in all 50 states.

Whether you choose to sign one or not, going into marriage with a strong plan for your financial future is always a wise decision.

UP NEXT: How to Apply for Student Loan Forgiveness

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