Massachusetts is an equitable division state and it has been long established that assets as well as debt are considered marital property and can be subject to division and/or assignment in a divorce. Student loan debt incurred by a spouse can be treated a little differently than other types of debts, like mortgages and credit cards or debts incurred to pay for the parties’ children’s college expenses.
In the case of student loans incurred by a spouse in furtherance of their education the court is looking to see whether or not that debt was incurred to further the marital partnership or if it was incurred to benefit only one spouse. In making this determination the courts are always required to consider M.G. Law Chapter 208 Section 43 in determining an appropriate a division of debt or assets in a divorce. https://malegislature.gov/laws/generallaws/partii/titleiii/chapter208/section34
Below is a list of more specific analysis the court considers in whether or not to divide student loan debt of a spouse in a divorce.
- When was the student loan debt incurred? When the debt was incurred is one of the most important factors. If it was incurred before the marriage it will typically remain with the spouse who incurred the debt. Similarly, if it was incurred at the end of the marriage and the other spouse has not had an opportunity to benefit from the other spouse’s education, such as increased income coming into the marriage, then it will likely remain with the spouse who incurred the debt unless you can show some of the other factors listed below apply to your situation.
- Was any of the debt incurred by a spouse used to pay living expenses while that spouse was attending school?
- Was one spouses’ debt paid off during the marriage to the exclusion of the other spouse’s student loan debt?
- Did the degree earned by the other spouse benefit the marital partnership?
In most instances the court will keep the debt with the spouse who incurred the debt, but can award that spouse more of the marital estate to balance the equities. In some cases the spouse not incurring the debt can also be ordered to make payments towards the other spouses’ debt when there are not enough assets in the marital estate to off-set the amount of student loan debt held by one of the parties.