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Category: Family Law Finances

Student Loans as Marital Debt

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Written by Olivia St. Clair Long on 8.1.23


Are student loans incurred during a marriage considered in the marital debt that will be equitably distributed at the termination of the marriage?


Student loans, like other debts incurred during a marriage, may be considered marital debt and can be distributed by the court between the two parties. There are several factors that a court will consider when allocating marital student loan debt; this means that the answer to whether and how the debt will be distributed will be different for each case at hand.


During a divorce, the separating couple must divide all their property and assets unless they have a prior agreement, such as a prenuptial or postnuptial. When handling the division of debt in divorce cases, it is essential first to understand the equitable distribution standard used in Illinois. In Illinois, while all marital debt must be distributed, the marital assets and liabilities are separated in an equitable manner for both sides. This means that there will not always be a 50-50 split.

To ensure the promotion of amicable settlement of disputes that arise between parties in a marriage and to eliminate the consideration of marital misconduct in the adjudication of rights and duties incident to the legal dissolution of marriage, Illinois moved to use the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”). To enable the correct application of the act, a court will divide marital property without regard to marital misconduct into just proportions considering all relevant factors. 750ILCS 5/503(d). All property and debts, regardless of the title that either spouse acquires during the marriage and before a judgement of dissolution, will be considered marital property. 750ILCS 5/503(a).

  1. Marital vs. Non-Marital Property

First, it is important to understand the difference between marital and non-marital property. Marital property means all property, including debts and other obligations, acquired by either spouse after the start of the marriage. 750 ILCS 503(a). Non-marital property are those assets which are owned by one spouse individually. Some examples of non-marital property are property acquired through gift, legacy, or descent or property acquired in exchange for such property, property acquired in exchange for property acquired before the marriage, and property acquired by a spouse after a judgement of legal separation. 750 ILCS 503(a)(1)(2).

  1. Shared vs. Individual Debt

In a proceeding for dissolution of marriage, the court will assign the non-marital property to each of the respective spouses and divide the marital property without regard to marital misconduct, like infidelity or mental cruelty, because Illinois is a no-fault divorce state. 750 ILCS 503(d). A court will divide the marital property into just proportions considering all relevant factors like each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property.

  1. How Is Student Loan Debt Divided?

When it comes to student loans, an issue that commonly arises is that one party primarily benefits from the education. The other party is then responsible for paying for a portion with no return on investment. A professional license or scholastic degree is given to one party, which is not able to be divided with other marital assets, and then the loans associated with those acquisitions are then imparted onto both members of the marriage. In re Marriage of Thornley, 361 Ill.App.3d 981, 988 (4th Dist. 2005).

Some of the factors that a court will consider during the dissolution of a marriage regarding the disposition of property include how other assets and debts were divided. 750ILCS 5/503(d)(3). While bearing this clause in mind, a court will consider the value gained by the party earning the degree while also judging how that factors into the debt that was acquired. A court will have to decide how each of these factors represented themselves in the marriage and who benefited from them.

Another factor is the difference in income between the two parties when the division of property is to become effective. 750ILCS 5/503(d)(5). This comes into consideration when there are assets such as a family home or maintenance, and a court considering these with the now assumed higher income that followed the earning of a degree funded by student loans.

A court will also consider whether one spouse made substantial sacrifices or contributions to allow the other to pursue an education. 750ILCS 5/503(d)(1). A court will look at each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property. This means that if a party contributed to the household primarily as a homemaker, this would be used as a factor. Also, if the degree funded by the student loans resulted in substantial income for the family or a substantial increase in one spouse’s income earning potential. All these factors or a combination can lead to a different spouse being responsible for a certain percentage of the debt rather than having the party who incurred the debt solely responsible for it.


If you are a student loan borrower and want your spouse to be responsible for part of the student loan, you can use reasons such as the non-borrowing spouse knew you were taking out the student loans and consented to it. Also, arguments that different debts should not be treated differently because it is fundamentally unfair; each party should contribute to all marital debts.

Student debt incurred during the marriage is marital debt, but how it is split among the parties varies on a case-by-case basis. It all depends on the other factors surrounding the dissolution of the marriage.

Depending on the specific facts of your case, our firm could be able to argue that the student loans incurred during your marriage are entitled to be equitably distributed between both parties.

If you or your spouse have student loan debt that was incurred during a marriage, and you would like to discuss what will happen to it during an Illinois divorce, it is vital to reach out to an attorney as soon as possible.

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