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Roger, Attorney
Category: Legal
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I am a new mexico resident. I graduated college over 10 years

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I am a new mexico resident. I graduated college over 10 years ago. Ever since I've made payments of less than my student loan interest so of course it's huge, over $130k.
due to divorce, moving, and health issues I haven't even worked in my degreed field for years. I've been working under my LLC for myself because of the economy and finding a decent paying job. So I've been making less than $20k gross a year, my husband makes about $65k gross. We own a home and have 2 kids.
I recently put my loans in forbearance. i'm so frustrated that my loan is growing when I've made thousands in payments, but I m not making enough to pay more, so now I've been in the income based repayment plan for over a year, this makes it so I pay about $500 a month and that still doesn't cover the monthly interest.
what can I do? This is causing me to stay up at night and i'm wondering if I should default on the loan? but then what happens? we can't have my husbands wages garnished, we don't even have a savings, we live paycheck to paycheck.
We even contemplated divorcing over this, but what will happen to me if I default? Please help
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question, but I'm sorry for your situation.

If your student loans were incurred BEFORE you were married, then your husband is not liable for the debt. However, if your student loans were incurred during the marriage, then your husband would be liable for the debt since New Mexico is a community property state.

As for dealing with the student loans, aside from participating in a deferral or forbearance program endorsed by the lender, the only way to try and get some relief is to file bankruptcy. I'm sure you've heard that student loans are not dischargeable, and that is generally true. But, there is a hardship exception to the law that does allow a discharge IF one can show that paying the student loans back makes it impossible for you to pay for necessities - - such as food, shelter and clothing. Here's a good link you can read about hardship discharges:

Don't get me wrong, this is not a given, but it is possible to discharge all, or even part, of your student loans in order to reduce the debt and free your monthly income up. If you want to pursue this, you should consult a local attorney in your area about the possibility of filing bankruptcy.

If you don't file bankruptcy, and you default on the loan, the lender will sue and obtain a judgment against you. Once that happens, it will issue wage garnishments, bank garnishments and can even levy execution against your property. Whether or not your husband is implicated or liable depends on when the student loans were obtained as we discussed above.
Customer: replied 3 years ago.
as for the if I was married....I was not married while I was in school and took out the original loans from Sallie Mae, but I may have consolidated them and resigned something for the direct loan program a couple years ago when I was does that figure?
If you refinanced the loans for a lower interest rate, he would likely be liable for the debt.
Customer: replied 3 years ago.
How can I find out?
also if we get divorced can they still go after him if I refinanced while we were married?
You would have to review your loan documents to see if its a refinance. It likely is.

If you were to divorce, you could split the debt in the property settlement, but that still wouldn't stop the creditor from seeking payment from either of you.
Customer: replied 3 years ago.
the mortgage on our house is in my husband and his parents name. if we filed bankruptcy and of course wanted the house excluded from the bankruptcy, would his parents be involved in any way? We would want to be sure there is no way they could be affected by our actions
They wouldn't be dragged into the bankruptcy at all.

You would just file and then do a simple reaffirmation agreement with the lender and have it approved by the court. This will allow you to keep you home and mortgage.
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