Expert: Terry Leeders - 6/11/2008

Question
My husband and I filed for bankruptcy in 2004. My student loan of 20 years was placed on their but not discharge. I am now currently going through a divorce and will have to start my life over with out his income. I have no income of my own and will not be able to pay the $24,000-$26,000 back. I want to know can I reopen my 2004 bankruptcy case to get the loan because of the financial hardship I am and will be going through. I live in West Virginia. Please Help.

Answer
I'm sorry, but you will not be able to discharge student loans.  If, during your case, you brought an adversary hearing to determine the dischargeability of the loans, you would have to satisfy the Brunner test.  This would include showing that you have paid the debt in the past, that you have no present ability to pay the loan, and you have no future ability to pay the loan.  So, if you had income during the case, then you wouldn't satisfy the test.  If you have the ability to work, then you won't satisfy the test.  It is a really hard presumption to overcome, since if you can afford to send them $50 per month, then you won't be able to discharge them in baseball.  Also, you have to bring the motion while the case is pending, and since it was 4 years ago, the court would not allow that motion.  You may want to try to have your divorce lawyer work out some type of maintenance, so that your ex will pay you a monthly stipend to help you pay for those.  I suggest you speak to your lawyer about your specific concerns.  Good Luck.