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LADY LAWYER
LADY LAWYER, Family Law Attorney
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Experience:  Family Law Attorney
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If my wife has 100 grand in student loans and I have paid back

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If my wife has 100 grand in student loans and I have paid back 15,000 over the course of a year and she is still unemployed and never used her degree to profit, under divorce settlement can I obtain this money back?

LADY LAWYER :

Hello, Thanks for choosing Justanswer.com! I look forward to helping you today.

LADY LAWYER :

Yes, it is possible, but not probable. If you were married when you paid down this debt for her, the court will likely view it as a gift. When you divorce, you can at least seek to have her be responsible for this debt herself and not have it considered community debt.

LADY LAWYER :

I wouldn't be so concerned about the 15K that you paid as I would getting the court to assign the rest of this debt solely to her.

Customer:

Why would the rest of the dept be my obligation?

LADY LAWYER :

Did she get acquire this debt before or after you were married?

Customer:

All under her name, private student loans, mostly before marriage. ~10,000 afterwards

LADY LAWYER :

When dividing the marital estate, most states require that the courts consider the parties' debts as well as their assets. In states which recognize the concept of marital and separate property, the courts generally recognize by analogy the concept of marital and separate debts. Marital debts are those incurred for a valid marital purpose; separate debts are those incurred for a nonmarital purpose. A marital purpose is ordinarily one which benefits both parties.

Customer:

And, to clarify, I the money was taken out of a joint bank account that she did not contribute to.

LADY LAWYER :

Like other marital debts, the classification of a student loan depends upon the purpose for which it was incurred. When the purpose of the loan was to pay the costs of attaining a specific degree, a large majority of states hold that the degree is not marital property. Since the purpose of the loan was to obtain something which was not marital property, one court reasoned that the loan is a separate debt of the student spouse.

LADY LAWYER :

A joint account, by definition, means it is co-owned by both parties. It does not matter that she did not contribute to it.

LADY LAWYER :

The 10K she took out during the marriage may be considered martial debt. BUT, you could receive an offset against it for the 15K you have already paid.

LADY LAWYER :

The court would be much more willing to do something like that than just give you the 15K back.

LADY LAWYER :

The good news is that she sounds like she has a good education and the court will require her to go out and get a job rather than just collect spousal support.

Customer:

Is there a public record or local free resource in ones district that could show precedent of such a case?

LADY LAWYER :

I use paid sites like Lexis and Westlaw, but you may find something on Findlaw.com.

Customer:

Thank you, XXXXX XXXXX that.

LADY LAWYER :

Like I said though, student loans are generally considered the obligation of the spouse that took them out. Sometimes, if the debt was acquired during the marriage, the court can consider that marital debt. But since you have already paid 15K and she took out 10K, you may get a set off of 10K here.

LADY LAWYER :

This is conisdering the court would say that you would have owed 5K of the 10K in det your wife took out while you were married. Since you paid 15K, you actually overpaid by 10K here.

LADY LAWYER :

So when the court lines up all the marital debt and assets, they may take 10K of the amount you would owe toward those debts right off the top.

LADY LAWYER :

Does that make sense?

LADY LAWYER :

This would be the best argument to present to the court.

Customer:

Well, If you are saying it is irrelevant that all dept are in HER name after the marriage, and she took out 10K after we married, she would own 1/2 and I own 1/2, since I paid 1/2 of the 10K +10K I May be able to have the 10K offset the marital dept assets?

LADY LAWYER :

Yes, that is what I am saying. And that is ONLY if the court views the 10K as marital debt. They may consider it separate debt and then you would not have to worry about it.

LADY LAWYER :

Your argument against making ALL of her student loan debt marital property is that you received NO benefit from it at all. For instance, she acquired all this debt and never worked in the field in which she received the degree. Thus, she never used this degree to contribute to the marital relationship.

LADY LAWYER :

No benefit to you = Her separate debt

Customer:

"Separate dept - not worry about it"- does this mean I would get the 15K offset the dept asset, or I will receive nothing in this ruling?

Customer:

ok

Customer:

Better understood.

LADY LAWYER :

Yes, it means you could ask for the 15K to be offset.

Customer:

one last question, if all dept was before marriage, is this all seperate dept and would it all be offset under this ruling?

LADY LAWYER :

Yes.

LADY LAWYER :

After we are through here, check out this website. It should give you a little more info on NC law in this area. It also has some case law in there, and even though it is from other states, NC frames the student loan debt this way as well: http://ricefamilylaw.com/blog/2010/12/27/how-to-handle-student-loan-debt/

LADY LAWYER :

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Customer:

Allright. Thank you very much.

LADY LAWYER :

I am happy to keep helping you with this issue if you need it, of course. If you would just please accept my answer before 12 EST (in 2 minutes) it would give me credit for this month and would help me out. Thanks :)

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