Family / Family Law

Are student loans Marital Property?


After doing many family cases, a frequent concern has been raised by many clients: is a spouse responsible for their spouse’s student loans?

For example, let’s say you and your spouse have been married for only one year, and now you want a divorce. After one year of marriage (short-term marriage), no real property was acquired. However, during that wonderful year, your spouse decided to go back to school and took out student loans. Will you be responsible for the student loans, even though it is under your spouse’s name and your spouse is the only person receiving a benefit from the loans?

A quick answer: most likely. Florida courts have held that, in the absence of specific findings supporting the unequal distribution of student loan debt, the liability must be equally distributed between the parties. Rogers v. Rogers, 12 So. 3d 288 (Fla. 2d DCA 2009).

But there’s more to it.

First question we as: is this marital or nonmarital debt?
In Florida, marital property and marital debt are divided by the court through a process called equitable distribution. Florida Statute 61.075 describes what constitutes marital property and debt and how it is distributed. Of course, there are several factors to be considered when determining what is equitable, and those factors are provided under Florida Statute 61.075.

But what exactly is marital property/debt?
Florida Statute 61.075 lists factors to consider when determining whether property/debt is marital. Pursuant to the Florida Statute, marital assets and liabilities include:

  1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
  2. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
  3. Interspousal gifts during the marriage.
  4. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

Additionally, Florida Statute includes the following as nonmarital assets and liabilities:

  1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
  2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
  3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
  4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
  5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature.

BOTTOM LINE: Most Florida Courts have found student loans to be marital debt, and therefore holding the other spouse responsible for the debt as well. As a general rule, Florida law provides that student loans incurred during the marriage are marital liabilities.  See Rogers, 12 So. 3d 288; Smith v. Smith, 934 So. 2d 636 (Fla. 2d DCA 2006); Adams v. Cook, 969 So. 2d 1185 (Fla. 5th DCA 2007) (trial court erred by finding that wife’s law school loans were nonmarital); Banton v. Parker-Banton, 756 So. 2d 155 (Fla. 4th DCA 2000) (reversing equitable distribution scheme where court’s treatment of student loans as marital or nonmarital appeared arbitrary).

In other words, if you get a divorce, the court will presumptively find that student loans incurred during the marriage are marital debt, and each party will likely be responsible for one-half of any such loans; or the loans will offset other assets and liabilities.

But what if you are not receiving any benefit from the student loans? Can you walk away without the student loan debt, if that is the case? Unfortunately, no. The fact that one party will not receive any benefit from the other party’s education due to the divorce is not a factor to be considered when allocating liability for student loan debt. Rogers, 12 So. 3d 288.

There are still options to not incur this debt:
(1) Come up with an agreement with your (soon to be ex) spouse. If you cannot come up with an agreement, the court will be the decision maker. Also, family courts refer cases to mediation when issues as to property and debt are in question; and
(2) Provide the court evidence and testimony supporting that it would be inequitable and unequal distribution if the court were to divide the student loan debt equally.

Did you learn anything or do you still have concerns regarding this issue?
Feel free to contact us if you need additional information!

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