How Student Debt is Handled in Divorce

In 2025, many couples have some form of student debt. Student debt can include debt strictly acquired to pay tuition costs and can also cover debt acquired during the pendency of the educational period to assist with living expenses.

Can you be required to pay for your spouse’s student debt that is not in your name? Potentially. In equitable distribution, courts follow a process for dividing assets or property: (1) classify the property, (2) assign value to the property, and (3) distribute the property to the parties. Courts may apportion debt (divide and assign percentages, i.e. 70% to wife, 30% to husband) between parties.

This article discusses how student debt is divided between parties in a divorce.

What is marital debt?

In a divorce proceeding, debt is generally classified as separate or marital. A court has broad authority to determine how debt should be assigned in the process of equitable distribution, or deciding how property, debts, or assets should be distributed between two partners who are dissolving their marriage.

Marital debt is defined by Virginia statute as either (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, or (ii) all debt in either party’s name acquired after the date of marriage and before the date of the separation of the parties. Virginia Code Ann. §20-107.3.

This means that debt under the name of one person (their student loans for a higher education degree) can technically be the responsibility of both parties in the event of a divorce if the debt was acquired after the date of marriage and before the date of separation.

The court considers the following factors in determining who is responsible for marital debt:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;
5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of § 20-91 or § 20-95;
6. How and when specific items of such marital property were acquired;
7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Virginia Code Ann. §20-107.3(5)(E).

When was the debt acquired & what date is used for the balance?

The first question in determining whether student debt should be the responsibility of one or both parties is: when was it acquired? Under Virginia Code Ann. §20-107.3, student debt that was acquired after the date of marriage and before the date of separation is considered ‘marital.’ If there was student debt owed prior to the marriage, but the debt increased during the marriage, the student debt is considered the amount by which the debt increased during the marriage and before separation.

There are two important dates in this equation: (1) when the debt was acquired, and (2) what the balance of the debt is at the date of separation. 

In Scheer v. Scheer, the Virginia Court of Appeals held that the Circuit Court erred in apportioning husband’s student loans where the court did not determine the amount owed as of the date of separation before distributing the marital property. Scheer v. Scheer, No. 1145-17-2, 2018 Va. App. LEXIS 224, at *1 (Ct. App. Aug. 14, 2018). The parties married in 2006. The same year, husband began a multi-year doctorate program which required numerous loans (18 in total). The loans were used to pay for the program in addition to family living expenses. Therefore, the debt was considered marital. The parties separated in June 2011, but did not file for divorce until 2014. During the proceedings, wife requested that the entirety of the outstanding student debt be apportioned to husband. The lower court determined the date of separation and found that the debt was marital with an apportionment of 25% of the loans to wife and 75% of the loans to husband. Id. at 2.

Wife objected on the grounds that the court had failed to determine the loan amounts as of the date of separation. The lower court reopened the record and allowed husband to establish the amounts that the parties owed on the date of separation.

The Court of Appeals outlined the process for equitable distribution: (1) classify the property, (2) assign value to the property, and (3) distribute the property to the parties, taking into consideration the factors listed in Code §20-107.3(E). Id. at 14, citing Theismann v. Theismann, 22 Va. App. 557 (1996).  In Scheer, the Court of Appeals determined that the Code requires a court to determine the amount of marital debt as of the date of separation before the debt is distributed between the parties. While the court may consider the differences in the balance of a debt between the date of separation and the date of the evidentiary hearing, it must consider the balance as of the date of separation as the initial controlling figure.

How was the debt used & what do I have to prove?

After the question of ‘when’ follows the logical ‘how’ or ‘why’ was the debt used. Parties must present evidence that debt was taken on during the marriage and thus should be treated as marital. However, this argument can be rebutted. As applied to student debt, for example, a party may argue that there was no benefit to the family from the student debt.

Is there a presumption that debt is marital? The Virginia Supreme Court has answered: “No.”

In an analysis of the Virginia Code, the Virginia Supreme Court has held that Virginia Code Ann. §20-107.3 displays a marked contrast between the treatment of assets and the apportionment of debts in equitable distribution. Gilliam v. McGrady, 279 Va. 703, 708 (2010). Therefore, "The equitable distribution statute contains no provisions creating a presumption or allocating a burden of proof with regard to the apportionment of debts between spouses.…" Id. at 709, emphasis added. A party wishing to argue that debt is marital must make a prima facie showing that the debt is marital, thereby shifting the burden to the opposing party to show that the debt was separate. Id. at 710.

What does this mean? Prima facie evidence is defined as: “… [E]vidence which on its first appearance is sufficient to raise a presumption of fact or establish the fact in question unless rebutted.…" City of Norfolk v. Va. Dep't of Envtl. Quality, 99 Va. Cir. 465, 475 (Cir. Ct. 2018). In this context, a party must argue and present evidence that student debt was acquired during the marriage, or before the marriage and used for family purposes during the marriage. The burden then shifts to the other party to argue otherwise.

Make the argument: the student debt was used for the benefit of the family.

Where a husband argued that he should not be responsible for student loans because he would not benefit from wife’s education, the Court of Appeals held that the family, not the husband, benefited from the student loans due to the use of loans for family expenses. Layne v. Layne, 2009 Va. App. LEXIS 468 (Ct. App. Oct. 20, 2009).

Wife had $30,000.00 in student loans at the time of marriage. During the marriage, the student loan debt increased to $74,000.00 by the date of separation. Therefore, the student loan debt before the court was a total of $44,000.00. Husband argued that he should not be responsible for the student loans because he would not benefit from wife’s education due to their separation. The Court of Appeals discussed that trial courts consider the purpose of the original debt and who benefited from it. Id. at 6. Where wife testified that she used the funds from student loans to maintain the household, the Court of Appeals upheld the trial court’s finding that the debt was marital and affirmed an apportionment of $11,000.00 to husband as his portion of the student loan debt. Id.

In an additional Court of Appeals case, a husband’s student loans were apportioned 70% to the wife where husband attended seminary school and used his student loans to pay for wife’s living expenses. Kim v. Lee, 2014 Va. App. LEXIS 11 (Ct. App. Jan. 14, 2014). The parties married in 1987. Husband worked full time, managed the household, and cared for the parties’ two children while wife pursued a master’s degree. Id. at 2. After completing seminary, wife was employed as a minister throughout the duration of the parties’ marriage. In 2003, husband attended seminary, using his student loans to pay for his education and giving a portion of his funds to wife for living expenses.

While the Virginia Supreme Court has held that there is no presumption that debt is marital, the Court of Appeals ruled that husband’s student debt was marital because the loan was incurred after the date of marriage and before the date of separation. Id. at 5. Additionally, the Court considered that wife failed to present credible evidence that the loans were used, in whole or in part, for a nonmarital purpose. Id.

Specifically refuting wife’s arguments that husband’s student loans should be separate, the Court of Appeals held, “Husband testified that he used the loans for his education and family. He also gave a portion of the funds to wife for her use. The loans increased husband's earnings for the benefit of the family. Therefore, contrary to wife's arguments, the student loan debt is marital debt.” Id.

Husband’s contributions to the family under Virginia Code Ann. §20-107.3(E) were considered in a context that included the time period before he incurred the student debt,

… [H]usband's monetary and non-monetary contributions to the well-being of the family "far exceeded those of the wife." Husband was the "primary income generator" and "primary caretaker of the parties' children," while wife "was primarily focused on her own interests and educational/career advancement, even at the expense of the family." The trial court also considered that "wife's neglect of the family" and the "general break down of the marriage" caused the dissolution of the marriage." Id. 6 –7.

The factors listed in Virginia Code Ann. §20-107.3(E)  play an important role in a court’s determination of how debt should be apportioned, as seen above.

Conclusion

Student loans may be considered marital debt when they were acquired during the marriage and before the date of separation. A party must present evidence that the loans were marital, as well as evidence as to the loan’s valuation as of the date of separation. A court has authority to apportion student debt between parties, and evidence should be submitted to the court regarding the contributions of the party to the marriage and the use of the loans. However, you may argue that student loans were acquired before the date of marriage, or, were not used for a marital purpose to include the benefit of the family.

Virginia Augello is a Pender & Coward attorney in the firm’s Family Law Practice Group, where she focuses on matters involving custody, child support, and related domestic relations issues in the Hampton Roads and surrounding areas.