To determine whether repaying the student loan debt is causing the debtor to experience an undue hardship, most courts apply three criteria outlined in a case known as “Brunner.”
Under Brunner, to prove they are experiencing an undue hardship, debtors must first demonstrate that repaying their student loans would not allow them to maintain a minimal standard of living. In other words, repaying the debt would prevent them from meeting their basic needs, including food, clothing and shelter. Second, debtors must show that additional circumstances exist that indicate their finances are unlikely to improve. These additional circumstances could include having a medical condition or caring for dependents. Third, debtors must show that they have made good-faith efforts to repay their loans. This includes efforts to make payments on the loans or attempts to consolidate their debt.
Meeting these three criteria is tough. Our data shows that about 38% of the debtors in the cases that we studied received a full or partial discharge of their student loans. But we also discovered other factors regularly come into play in the court’s decisions. Here are three factors that stood out in our research.
1. Being a single mom helps, but not being a single dad
In student loan discharge decisions, judges regularly consider the expenses associated with a debtor’s children. Our research team found it also sometimes matters to the court whether the debtor is a single parent. Being a single parent more than doubled the chances of obtaining a discharge, but only for mothers. Single fathers did not experience any notable benefit from being a single parent.
We’re not certain about why courts view single moms as more deserving of a discharge than single dads. It could have something to do with stereotypes about mothers being the “caregivers” in a family, whereas men are the “breadwinners.” A mother’s plea to help fulfill her role as a caregiver may be seen as more persuasive than a father’s plea to be relieved of his financial obligations.
2. Disclosing a medical condition helps men, but not women
When assessing a debtor’s ability to repay a debt, case law suggests that judges must consider any difficulties a person has in trying to find a decent-paying job.
Such struggles are captured by the “additional circumstances” mentioned in the second Brunner criterion. Those additional circumstances include medical conditions. However, judges appear to give medical conditions more consideration for men than they do for women.
Our research found that men reporting a medical condition are 93% more likely to obtain a student loan discharge than men who did not report a medical condition. We did not find this same effect for women. This gender gap is highly relevant, given that female debtors outnumbered male debtors in our analysis almost 2 to 1.
Women’s medical concerns seem to be dismissed or overlooked in multiple arenas – from courts to hospitals. Psychologists theorize this may arise from stereotypes that suggest women may dramatize medical conditions and exaggerate their pain.
3. Not having an attorney hurts your cause
Thanks to ubiquitous crime dramas, it is widely known that those who cannot afford an attorney can have one appointed. Lesser known is that this constitutional right applies only to criminal proceedings. In most civil trials, like bankruptcy proceedings, there is no right to an attorney. When debtors cannot afford an attorney, they often must represent themselves.
In student loan bankruptcy proceedings, 33% of debtors represent themselves, often to their detriment. We found that debtors who retained an attorney improved their chances of getting their student loans discharged by at least 60%. This was true whether the debtor was male or female.
The benefit of having an attorney in court is well-supported by research. Attorneys who specialize in bankruptcy are likely to be aware of the factors upon which judges rely and can build a strong case for discharge. Without an attorney, it can be difficult to know which details to disclose and how to present them.
Potential solutions
Getting student loan debt discharged can be difficult and emotionally draining.
If you are thinking about seeking relief from student loan debt, the following suggestions may help.
Develop a strategy that takes your gender into account: For single fathers, it might be advantageous to emphasize your “breadwinning” role, show the court that you have made efforts toward repaying the loans or have tried very hard to get a decent-paying job. For women with medical conditions, provide as much evidence as you can in the form of hospital visits, attempts to declare disability and the like.
None of this advice matters if you fail to file a separate case to get your student loans discharged – as is the case with most student loan debtors who file a bankruptcy case. Without the separate proceeding, students loans cannot be discharged. Around 241,000 people with student loan debt filed for bankruptcy in the U.S. in 2017, but only 447 of those also filed a separate case to get rid of their student loans. Consult the free legal resources to learn how to file this separate case.
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Kelsey Lynne Hess receives funding from the National Conference of Bankruptcy Judges.
Andrea C. F. Wolfs receives funding from the National Conference of Bankruptcy Judges.
Deborah Goldfarb receives funding from the National Conference of Bankruptcy Judges, the National Institute of Justice, and the National Science Foundation. She is affiliated with the American Bar Association.
Jacqueline R. Evans receives funding from the National Science Foundation, the National Institute of Justice, the Federal Bureau of Investigation, and the National Conference of Bankruptcy Judges.
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Biden still plans to restart federal student loan payments in February. Here’s how you can prepare
NDAB Creativity // Shutterstock
The pursuit of higher education has been an integral step in achieving the American Dream since James Truslow Adamscoined the phrase in 1931. He defined the American Dream as the hope for “a better, richer and happier life for all our citizens of every rank.” Collectively, though, people in the United States have racked up $1.7 trillion in debt on this step alone.
Data tells us that, for some, a college degree is one means to this end. Over the course of a lifetime in the same career, a worker with a bachelor’s degree canearn roughly $1 million morethan a worker with a high school diploma as their highest educational attainment. That earnings gap grows significantly with every advanced degree, but that long-term financial gain comes with a price tag that could take close to a lifetime to pay off.
Decades oftax cuts to state fundingfor higher education have resulted in tuition hikes at both public and private institutions. Since 2000, the average cost of college per student hastripled to $35,720 per year. These exorbitant costs have outpaced currency inflation, leading to increasing debt loads and stagnant wages when it comes time for repayment.
Cautionary tales of graduates being saddled with six-figure debt sums are often used to contextualize the near-incomprehensible $1.7 trillion figure. For some, likelawyers, doctors, dentists, and veterinarians, those stories—and sums—are accurate. For the person pursuing an undergraduate degree, however, their total is notably less—$29,000, on average.
But the burden of repayment is borne differently from borrower to borrower. For example, Black graduates arefive times more likely to defaulton loan repayment compared to their white peersdue to lower median earnings. And their total debt is likely to be higher—anaverage of $52,000for a bachelor’s degree. Women are forced to finance advanced degrees just to close thegender pay gap, ultimately earning—even with a master’s degree—what a man in the same role would earn with a bachelor’s degree. For roughly20% of borrowers, financing their pursuit of higher education is not a step toward the American Dream, but a roadblock. Whilevarious proposals for loan forgivenesshave been floated, like canceling $10,000 for every borrower, or deciding forgiveness-based income thresholds, none have been instituted to date.
On a larger scale, student loan debt can also vary significantly from state to state.StudySoupanalyzed household debt statistics from the Federal Reserve of New Yorkto understand how the average amount of student debt has grown across all 50 states.
States are ranked by percent change in student debt per capita between the fourth quarter of 2003 and the fourth quarter of 2020, the most recent period available. The Federal Reserve calculates historical student debt per capita, meaning the state statistics are calculated based on total population rather than number of borrowers.Additional data for 2020 on average debt per borrower is also included.
NDAB Creativity // Shutterstock
The pursuit of higher education has been an integral step in achieving the American Dream since James Truslow Adamscoined the phrase in 1931. He defined the American Dream as the hope for “a better, richer and happier life for all our citizens of every rank.” Collectively, though, people in the United States have racked up $1.7 trillion in debt on this step alone.
Data tells us that, for some, a college degree is one means to this end. Over the course of a lifetime in the same career, a worker with a bachelor’s degree canearn roughly $1 million morethan a worker with a high school diploma as their highest educational attainment. That earnings gap grows significantly with every advanced degree, but that long-term financial gain comes with a price tag that could take close to a lifetime to pay off.
Decades oftax cuts to state fundingfor higher education have resulted in tuition hikes at both public and private institutions. Since 2000, the average cost of college per student hastripled to $35,720 per year. These exorbitant costs have outpaced currency inflation, leading to increasing debt loads and stagnant wages when it comes time for repayment.
Cautionary tales of graduates being saddled with six-figure debt sums are often used to contextualize the near-incomprehensible $1.7 trillion figure. For some, likelawyers, doctors, dentists, and veterinarians, those stories—and sums—are accurate. For the person pursuing an undergraduate degree, however, their total is notably less—$29,000, on average.
But the burden of repayment is borne differently from borrower to borrower. For example, Black graduates arefive times more likely to defaulton loan repayment compared to their white peersdue to lower median earnings. And their total debt is likely to be higher—anaverage of $52,000for a bachelor’s degree. Women are forced to finance advanced degrees just to close thegender pay gap, ultimately earning—even with a master’s degree—what a man in the same role would earn with a bachelor’s degree. For roughly20% of borrowers, financing their pursuit of higher education is not a step toward the American Dream, but a roadblock. Whilevarious proposals for loan forgivenesshave been floated, like canceling $10,000 for every borrower, or deciding forgiveness-based income thresholds, none have been instituted to date.
On a larger scale, student loan debt can also vary significantly from state to state.StudySoupanalyzed household debt statistics from the Federal Reserve of New Yorkto understand how the average amount of student debt has grown across all 50 states.
States are ranked by percent change in student debt per capita between the fourth quarter of 2003 and the fourth quarter of 2020, the most recent period available. The Federal Reserve calculates historical student debt per capita, meaning the state statistics are calculated based on total population rather than number of borrowers.Additional data for 2020 on average debt per borrower is also included.
Single mothers are more likely than single fathers to have their debts discharged in court. Heide Benser/Getty Images
Courts are more likely to see the mother as a caregiver than they are a father. Fertnig/E+ via Getty Images
NDAB Creativity // Shutterstock