Your chances of getting rid of student debt depend on who you are

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Kelsey Lynne Hess, Florida International University; Andrea CF Wolfs, Plymouth State University; Deborah Goldfarb, Florida International University, and Jacqueline R. Evans, Florida International University

(THE CONVERSATION) To get rid of student loan debt through bankruptcy, you must prove to the court that paying off your student loans would cause “undue hardship”. But in our peer-reviewed study of nearly 700 student loan discharge cases spanning the period from 1985 to 2020, we found that judges’ decisions to dismiss student loans are often influenced by personal factors, such as your sex.

To determine whether paying off student loan debt causes the debtor undue hardship, most courts apply three tests set out in a case known as “Brunner.”

Under Brunner, to prove they are experiencing undue hardship, debtors must first demonstrate that paying off their student loans would not allow them to maintain a minimal standard of living. In other words, paying off the debt would prevent them from meeting their basic needs, including food, clothing and shelter. Second, debtors must demonstrate that there are other circumstances that indicate their finances are unlikely to improve. These additional circumstances could include a medical condition or the care of dependents. Third, debtors must demonstrate that they have made good faith efforts to repay their loans. This includes efforts to make repayments on loans or attempts to consolidate their debt.

Meeting these three criteria is difficult. Our data shows that approximately 38% of the debtors in the cases we studied obtained full or partial discharge of their student loans. But we also discovered that other factors regularly come into play in court decisions. Here are three factors that stood out in our research.

1. Being a single mom helps, but not being a single dad

In student loan discharge decisions, judges routinely consider expenses associated with the debtor’s children. Our research team found that it also sometimes matters to the court whether the debtor is a single parent. Being a single parent more than doubled the chances of being released, but only for mothers. Single fathers did not derive any noticeable benefit from being a single parent.

We don’t know why the courts consider single mothers more worthy of release than single fathers. It might have something to do with stereotypes that mothers are the “caregivers” in a family, while men are the “breadwinners.” A mother’s call for help in fulfilling her caring role may be considered more compelling than a father’s call for release from financial obligations.

2. Disclosing a medical condition helps men, but not women

When assessing a debtor’s ability to repay a debt, case law suggests that judges should consider any difficulties a person is having trying to find a well-paying job.

These struggles are captured by the “additional circumstances” mentioned in Brunner’s second criterion. These additional circumstances include medical conditions. However, judges seem to give more consideration to medical conditions for men than they do for women.

Our research found that men reporting a health condition are 93% more likely to get student loan discharge than men who did not report a health condition. We did not find this same effect for women. This gender gap is highly relevant, given that female debtors outnumbered male debtors in our analysis by nearly 2 to 1.

Women’s medical concerns seem to be dismissed or overlooked in multiple areas – from courts to hospitals. Psychologists theorize it may stem from stereotypes that suggest women may dramatize medical conditions and exaggerate their pain.

3. Not having a lawyer hurts your case

Thanks to the ubiquitous crime dramas, it is well known that those who cannot afford a lawyer can have one appointed. What is less known is that this constitutional right only applies to criminal prosecutions. In most civil lawsuits, such as bankruptcy proceedings, there is no right to an attorney. When debtors cannot afford a lawyer, they often have to represent themselves.

In student loan bankruptcy proceedings, 33% of debtors represent themselves, often to their detriment. We found that debtors who retained the services of a lawyer improved their chances of getting their student loans discharged by at least 60%. This was true whether the debtor was a man or a woman.

The benefit of having an attorney in court is well supported by research. Bankruptcy attorneys are likely to know the factors judges rely on and can build a strong case for discharge. Without a lawyer, it can be difficult to know what details to disclose and how to present them.

Potential solutions

Getting student loan debt forgiven can be difficult and emotionally draining.

If you are considering applying for student loan debt relief, the following suggestions may help.

Develop a strategy that takes your gender into account: For single fathers, it can be beneficial to emphasize your role as “breadwinner”, to show the court that you have made efforts to repay the loans or that you have worked hard to get a well-paying job. . For women with medical conditions, provide as much evidence as possible in the form of hospital visits, attempts to claim disability, etc.

Regardless of your gender, remember the importance of having a lawyer: Familiarize yourself with legal aid organizations in your area, which may provide free legal services. Also be sure to research other free legal information that can be found on court websites and similar places.

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None of this advice matters unless you file a separate case to get your student loans discharged – as is the case with most student loan debtors who file for bankruptcy. Without the separate procedure, student loans cannot be canceled. About 241,000 people with student loan debt filed for bankruptcy in the United States in 2017, but only 447 of them also filed a separate case to get rid of their student loans. Check out the free legal resources on how to file this separate case.

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