A spouse is typically not responsible for student loan debt incurred before marriage. And that's usually true even if they live in community property states. (More on that below.)
Both federal student loan debt and private student loan debt usually remain the borrower's sole responsibility if the student loans were incurred before marriage.
Basically, your debt, like your property, remains separate property if the property/debt was incurred before marriage.
This can change, however, if the married couples enter into some agreement (e.g., a postnuptial agreement) that modifies the ownership/liability for the property.
It can also change if you refinance the student loan debt, and you or your spouse act as a cosigner on the debt.
Click here to learn How to Remove a Cosigner From a Student Loan
FYI: The federal government allowed married couples to apply for a joint consolidation loan to get into an affordable repayment plan. They stopped offering those loans years ago because there was no way for married borrowers to separate the student loan debt if they divorced. As a result, there are spouses' stuck paying tens of thousands of loan debt that's not theirs.
Click here to learn Repayment Options for Couples that File Tax Returns Married Filing Jointly
Will I be responsible for my spouse's student loan debt if we divorce?
This is a complicated question.
If the student loan debt were incurred before you married, then the debt would remain your spouse's sole responsibility. (That is, of course, unless you cosigned for their debt or signed a postnuptial agreement.)
But what if your divorce decree says you're responsible for your spouse's debt?
Judges typically can't change the contractual relationship you or your spouse have with the U.S. Department of Education or a private lender.
What I mean is, a judge usually can't enter a legal order that changes whose responsible for the student loan debt according to the promissory note.
What a judge can do, however, is say that you're responsible for the student loan debt. If you don't pay, then you could be in contempt of the judge's order. And if you're in contempt of the order, your wages could be garnished, your bank account could be levied, or you could go to jail. (You wouldn't technically be going to jail for student loans; You'd be going to jail for violating the court order by not making monthly payments on your ex-spouse's student loan debt.)
But what about your ex-spouse's student loan debt incurred after marriage?
In that case, if you live in a community property state, the debt could be considered joint debt. And if it's joint debt, the judge could say that you're legally responsible for paying back the debt.
Again, that's just an order from the court. It doesn't change the contractual relationship for federal student loans or private loans.
So if your spouse doesn't make your monthly student loan payments and you default, then your credit report will take a hit because late payments will be added to your credit history, your credit score will drop, and your wages could be garnished. And the only way you could force your spouse to pay is to go back to the judge who ordered them to pay your loans and hope they hold your ex-spouse in contempt.
Long story short: If you really want your ex-spouse to be responsible for the student loan debt, make sure they explore refinancing options with a private lender.
What are community property states?
In community property states, both spouses are jointly responsible for all debts taken out after they’re married. (The opposite of a community property state is a common law state.)
Debt incurred after the marriage is considered marital debt.
The big thing to note here is that you could be responsible for the marital debt even if you didn't know your spouse incurred the debt. So if your spouse is secretly racking up credit card debt or is borrowing student loans without your knowledge, you could be on the hook for that debt if you divorce. This is one reason why you want to have clear communication with your spouse about financial decisions.
Here's a list of the community property states:
- New Mexico