QUESTION

How are paid off student loans dealt with in a divorce?

Asked on Feb 17th, 2013 on Divorce - Delaware
More details to this question:
A student loan was acquired by one spouse prior to marriage, and then was paid off during marriage with marital funds. If a divorce later occurs, is this loan considered debt that should be assigned to one or both spouses (for example, should the non-student spouse receive repayment for the loan paid with marital funds)? Or if the loan is paid off, is it no longer a marital debt to consider?
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5 ANSWERS

Family Law Attorney serving Temecula, CA at Landon Rainwater Robinson LLP
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See California Family Code 2641 - (A) Community Contributions To Education Or Training As Used In This Section Means Payments Made (a) Community contributions to education or training as used in this section means payments made with community or quasi-community property for education or training or for the repayment of a loan incurred for education or training, whether the payments were made while the parties were resident in this state or resident outside this state. (b)Subject to the limitations provided in this section, upon dissolution of marriage or legal separation of the parties: (1)The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party. The amount reimbursed shall be with interest at the legal rate, accruing from the end of the calendar year in which the contributions were made. (2)A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party. (c)The reimbursement and assignment required by this section shall be reduced or modified to the extent circumstances render such a disposition unjust, including, but not limited to, any of the following: (1)The community has substantially benefited from the education, training, or loan incurred for the education or training of the party. There is a rebuttable presumption, affecting the burden of proof, that the community has not substantially benefited from community contributions to the education or training made less than 10 years before the commencement of the proceeding, and that the community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding. (2)The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made. (3)The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required. (d)Reimbursement for community contributions and assignment of loans pursuant to this section is the exclusive remedy of the community or a party for the education or training and any resulting enhancement of the earning capacity of a party. However, nothing in this subdivision limits consideration of the effect of the education, training, or enhancement, or the amount reimbursed pursuant to this section, on the circumstances of the parties for the purpose of an order for support pursuant to Section 4320. (e)This section is subject to an express written agreement of the parties to the contrary. Enacted by Stats. 1992, Ch. 162, Sec. 10.
Answered on Feb 20th, 2013 at 8:55 PM

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Family Law Attorney serving Chandler, AZ
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Generally speaking, a premarital debt is the sole and separate obligation of the person who incurred the debt. If the premarital debt was paid off during the marriage, it is essentially presumed that the community made a gift to the separate debt (unless there is evidence to support a claim that the non-debtor spouse intended to be reimbursed for his/her share of payments made toward the other spouse's premarital debt). However, if the loan has been paid off, then it is no longer an outstanding debt to be divided in the divorce and the issue may be moot.
Answered on Feb 20th, 2013 at 8:24 PM

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It is a marital debt to be divided. Talk to an attorney about this issue further.
Answered on Feb 20th, 2013 at 7:54 PM

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John Arthur Smitten
When you get divorced the court looks at what is left to divide not what was paid off in the past.
Answered on Feb 20th, 2013 at 7:26 PM

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Estate Planning Attorney serving Wilmington, DE at Reger Rizzo & Darnall, LLP
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If the loan is paid it is no longer a debt.
Answered on Feb 20th, 2013 at 12:17 AM

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