Is it possible to file for bankruptcy while in the middle of an in-home separation? 20 Answers as of March 17, 2014

I would like to know if I am able to file for bankruptcy while in the midst of an in-home separation. I have four minor children and one with a disability, so I don't work full time outside the home. The debt I am looking to discharge is a student loan debt that I am unable to repay.

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Tokarska Law Center
Tokarska Law Center | Kathryn U. Tokarska
It's possible to file for bankruptcy but whether you can discharge your student loans is a question is not something that can be answered online. The rules on discharging student loans are very stringent and even if you are a great candidate for discharge there is no guarantees you will win a discharge in court. To TRY to discharge student loans, in addition to filing for bankruptcy, you have to file an adversary complaint. Typically, the creditor will oppose it and either there will be a trial or maybe a settlement can be reached. In my view it's a "messed" law. How can someone who can barely keep their head above water pay for legal fees to fight a creditor with deep pockets and looking at some of the previous cases that have been attempted, fight they will. If these are federal student loans I encourage you to look into available alternative repayment plans (such as IBR, ICR, PAE). If you have no income, the payment could be set at zero and you start the 20 or 25 year clock running (depending when you took the loans) on forgiveness. But you have to make the contact with your loan servicer and send to them some paperwork to enroll in a plan. If you can get the payment lowered to $0 or some very small payment this may be a better option than ignoring the situation and defaulting on the loans. If the payment is set at zero, you don't have to pay anything, and your credit report will show that your loans are in good standing. If you don't know who is handling your federal loans go to: http://www.nslds.ed.gov/nslds_SA/ to get that information. If you have private loans they won't show up here, those are likely reporting in your credit report. For private loans, there are no hardship programs, your only chance to modify these is if the lender will voluntarily agree. Hopefully, you don't have any private loans. For federal loans there is also Public Service Loan Forgiveness Program, there are some changes being proposed (such as capping the forgiveness amount at around $50K) so not sure how this program will look going forward but the basic idea is that if you apply for this and work the eligible amount of hours per week with an eligible employer (could be non-profit org, state, federal, city, or municipal govt) you could get the federal loans forgiven after 10 years of service. Something worth looking into if you can work at least 30 hours a week.
Answer Applies to: California
Replied: 3/17/2014
Eranthe Law Firm
Eranthe Law Firm | Cate Eranthe
Student loan debt is usually not dischargeable. You would have to file a lawsuit within the bankruptcy and basically prove that you will never be able to pay it in your lifetime. You might have better luck going to the student loan lender and asking for a deferral or hardship discharge from the company itself. Definitely costs less to do it that way.
Answer Applies to: California
Replied: 3/13/2014
Goldsmith & Guymon
Goldsmith & Guymon | Marjorie Guymon
It is a possibility. It all depends on if you are eligible and what type bankruptcy you wish to file. I recommend meeting with an attorney to discuss your options.
Answer Applies to: Nevada
Replied: 3/13/2014
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
You better see a lawyer. It is quite difficult to discharge student loan debt. You can file, the status of your marriage should not prevent that, but if the other spouse is living there and making allot of money, that might be a problem.
Answer Applies to: California
Replied: 3/13/2014
The Law Offices of Deborah Ann Stencel | Deborah A. Stencel
Student loan debt is not generally dischargeable except in extraordinary circumstances (which you may have). Your living situation will not prevent you from filing as long as you otherwise qualify. You might want to sit down with an attorney with experience in discharging student loan debt and bankruptcy before you proceed.
Answer Applies to: Wisconsin
Replied: 3/13/2014
    Danville Law Group | Scott Jordan
    Yes, it is possible. However, if you are looking to discharge student loan debt, I am afraid you probably will not succeed. Student loan debt is not dischargeable in bankruptcy, except in the rarest of occasions. An attorney would need to know more about your financial circumstances before given additional advice.
    Answer Applies to: California
    Replied: 3/13/2014
    Law Offices of Joseph A. Mannis
    Law Offices of Joseph A. Mannis | Todd Mannis
    Yes, although for clarity, the Bankruptcy Court would not consider you separated. Regardless, you could still file, either singly or jointly, and given the kids and the reduced income, I don't suspect you'd have any major issues. Keep in mind, that is based only upon the extremely limited information you have provided. The better bet would be to take advantage of a consultation with an experienced bankruptcy attorney.
    Answer Applies to: California
    Replied: 3/13/2014
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    Student loan debt is generally not dischargeable so your attorney would have to file for an extreme hardship which very few in the country are ever approved by the bankruptcy courts.
    Answer Applies to: New York
    Replied: 3/13/2014
    Garner Law Office
    Garner Law Office | Daniel Garner
    Yes, you can file for bankruptcy in your situation but discharging your student loan will require a separate adversary proceeding which will be difficult to win and therefore expensive. You might inquire with legal aid as to available assistance for your circumstances.
    Answer Applies to: Oregon
    Replied: 3/13/2014
    Heineman Law Office
    Heineman Law Office | Jeff Heineman
    Filing a bankruptcy does not mean your student loan will be discharged. Some student loans do not meet the requirements to be protected from the discharge, but you must assume that those student loan companies would attempt to fight you on that conclusion. In all likelihood, some kind of court action will be required. To discharge student loans, you would need to file an adversary proceeding in the bankruptcy court to discharge the student loans. If it becomes a contested matter, the attorney fees and costs could exceed $10,000, if the lender does not agree to discharge them. You could also look into the Ford Student Loan Program to see if your loans qualify.
    Answer Applies to: Idaho
    Replied: 3/13/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    See an attorney but realize that government backed student loans are rarely dischargeable in bankruptcy.
    Answer Applies to: Michigan
    Replied: 3/13/2014
    Rosenberg & Press
    Rosenberg & Press | Max L. Rosenberg
    It is definitely possible.
    Answer Applies to: Connecticut
    Replied: 3/13/2014
    Law Offices of Linda Rose Fessler | Linda Fessler
    You can file a BK, but probably you will not get rid of the student loan by doing so. If the student loan is guaranteed by the government, it will not be discharged in bankruptcy.
    Answer Applies to: California
    Replied: 3/13/2014
    Law Office of Lynnmarie A. Johnson
    Law Office of Lynnmarie A. Johnson | Lynnmarie Johnson
    You can, but since you are living together, his income will count. Student loans are very difficult to discharge. Make sure you find an attorney who specializes in them.
    Answer Applies to: Michigan
    Replied: 3/13/2014
    Deborah F Bowinski, Attorney & Counselor at Law | Debby Bowinski
    If the student loan is the real difficulty do NOT try to file for bankruptcy on your own and think that the loan will be discharged. Student loans are not generally dischargeable in bankruptcy, and it is only with significant, difficult, and often highly contested litigation by way of an adversary proceeding that it might be possible to have some or all of the loan balance discharged. Speak with a lawyer before making any decisions. There may be other student loan repayment options available to you.
    Answer Applies to: Colorado
    Replied: 3/13/2014
    OlsenDaines, PC
    OlsenDaines, PC | Kristoffer Sperry
    An individual can file their own bankruptcy regardless if they are married, separated or divorced. Student loans are classified as "non-dischargeable." There is a process to attempt to wipe out student loans in bankruptcy but it generally requires a full trial with discovery, testimony and exhibits. It can be a expensive and there are no guarantees.
    Answer Applies to: Idaho
    Replied: 3/13/2014
    Patrick W. Currin, Attorney at Law | Patrick Currin
    You can file, but only jointly if in the same household. You cannot discharge student loan debt however.
    Answer Applies to: California
    Replied: 3/13/2014
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