Can Private Student Loans Be Discharged in Bankruptcy?
Private student loans can be discharged in bankruptcy (meaning you are released from your debt obligation), but the process is notoriously difficult. Not only does the bankruptcy filing require an additional step called an adversary proceeding, but you’ll also need to prove your student loans cause undue hardship by passing certain tests. The process can be expensive and damage your credit for years to come.
However, successful applicants may see their private student loan debt discharged or temporarily restructured with more affordable payments. Read on for a closer look at bankruptcy and private student loans so you have a clear understanding of your options.
Table of Contents
Key Points
• Private student loans can be discharged in bankruptcy, but only under strict conditions, as borrowers must prove the debt causes “undue hardship.”
• You must file an adversary proceeding — a separate lawsuit within the bankruptcy case — which makes the discharge process more complex and costly.
• Courts typically use the “Brunner Test” to evaluate undue hardship.
• The Brunner Test requires proof that repaying the loan would prevent you from maintaining a basic standard of living, that financial hardship is likely to continue, and that you’ve made good-faith efforts to repay.
• Bankruptcy discharge of private student loans is risky and can hurt your credit long-term.
Private vs Federal Student Loans
Student loans can help pay for the cost of higher education. According to Education Data Initiative, the average cost of a year at college is currently $38,270, including books and daily living expenses.
There are two types of student loans: federal student loans and private student loans.
• Federal student loans are issued by the Department of Education. Federal loans have some benefits and protections that private loans don’t have. These can include deferment and student loan forbearance (a temporary postponement or reduction of your student loan payments).
• Private student loans come from private lenders, such as banks, credit unions, and online loan providers. They do not offer the same protections and benefits as federal student loans.
Student Loans and Bankruptcy
There are different paths for student loans to potentially be discharged in bankruptcy. In the past, federal student loan discharge through bankruptcy was even more difficult than private loan discharge. However, the Department of Justice announced changes to the process in November 2022 that simplified the process for federal loan borrowers.
Under the new rules, borrowers can complete a 15-page Attestation Form to show that their student loans cause undue hardship. The Department of Justice also introduced new guidelines for undue hardship to make them more fair and consistent for debtors.
Private student loans don’t qualify for this new process, but it’s still possible to include them in a bankruptcy proceeding. It may be best to consult a student loan lawyer who can help guide you through the process.
Key Differences in Protections and Repayment Options
Federal and private student loans differ significantly in the protections and repayment flexibility they offer. Federal loans provide built-in safety nets — such as income-driven repayment, deferment, forbearance, and forgiveness programs — while private loans rely on lender-specific policies that are often more limited.
Key differences include:
• Federal loans offer income-driven repayment plans; private loans typically do not.
• Federal loans may qualify for forgiveness programs like PSLF.
• Private lenders set their own deferment and forbearance rules.
• Federal loans usually have fixed interest rates; private loans may have variable rates.
• Credit checks are required for most private loans, but not for federal Direct Subsidized and Unsubsidized Loans.
Recommended: Private Student Loan Refinance
Private Student Loans and Bankruptcy Laws
Private student loan discharge is available under section 523(a)(8) of the Bankruptcy Code — if the debtor can prove that their student loans cause undue hardship. While undue hardship has historically not been clearly defined, most courts use what’s known as the Brunner Test to make this determination (more on this below).
Whether or not student loans are discharged also depends on the type of bankruptcy you file for, meaning whether it’s Chapter 7 or Chapter 13.
• Chapter 7 bankruptcy: Chapter 7 bankruptcy can discharge your debts after liquidating your assets. This type of bankruptcy stays on your credit report for 10 years.
• Chapter 13 bankruptcy: Chapter 13 bankruptcy reorganizes your debts with a new repayment plan that spans three to five years. Some unsecured debts (such as credit card debt or personal loans) may be discharged at the end of the plan, but take note: You’ll still be responsible for your student loans — the remaining balance, plus interest. Collections will be paused during this time, but your loans will accrue interest. Chapter 13 bankruptcy stays on your credit report for seven years.
There are a few other circumstances where private student loans can be discharged, according to the Consumer Financial Protection Bureau. For instance, you may qualify for private student loan discharge if:
• You borrowed more than your school’s cost of attendance.
• You got loans for a school that wasn’t eligible for Title IV funding, such as an unaccredited college or trade certificate program.
• Your loans were used to cover fees and living expenses while you studied for a professional exam, such as the bar exam.
• Your loans were used to cover fees, living expenses, or moving costs while you were in medical or dental residency.
• Your loans were made while you were attending school less than half-time.
If any of the above scenarios apply, you may be able to discharge your private student loans in bankruptcy without having to meet the more difficult standard of the Brunner Test.
Recent Legal Changes Affecting Private Loan Dischargeability
In 2025, the Private Student Loan Bankruptcy Fairness Act of 2025 was introduced in Congress, proposing that private student loans be discharged in bankruptcy without requiring borrowers to prove “undue hardship.” While this has yet to pass, current shifts suggest better prospects ahead. Anyone considering bankruptcy as an option should stay informed of evolving laws and recent rulings.
Recommended: Student Loan Refinancing Calculator
Understanding the Bankruptcy Process
Your first step in declaring bankruptcy is filing for bankruptcy and paying the associated fees.
• The initial filing fee for Chapter 7 bankruptcy (which focuses on unsecured debt, such as credit card debt and personal loans) is usually around $338.
• The filing fee for Chapter 13 bankruptcy (which typically involves discharging unsecured debt while catching up on secured debt, such as a mortgage) is likely to be around $313.
In addition, attorney costs can vary and may add up to thousands of dollars. While this can be a steep expense, an experienced attorney or student loan lawyer can help you navigate the process, as well as help you determine which type of bankruptcy fits your financial circumstances.
What Is the Process of Getting Student Loans Discharged?
To get private student loans discharged through bankruptcy, you’ll need to take the extra step of filing an adversary proceeding. This is basically a lawsuit within the bankruptcy. Essentially, the adversary proceeding means that you’re suing your student loan lender or servicer. The fee to file an adversary proceeding is often around $350.
After filing this adversary proceeding and outlining your case, a judge will determine whether you qualify for private student loan discharge through bankruptcy.
Chapter 7 vs. Chapter 13 Bankruptcy
Chapter 7 and Chapter 13 bankruptcy offer two very different paths for borrowers seeking student loan discharge, each with its own implications.
Chapter 7, often known as liquidation bankruptcy, is designed for individuals with limited income and few assets. It eliminates many forms of unsecured debt, but student loans are only discharged if the borrower files an adversary proceeding and proves undue hardship. This route is generally faster — usually a few months — but borrowers must meet strict income requirements to qualify.
Chapter 13, on the other hand, reorganizes debt rather than eliminating it outright. Borrowers enter a three- to five-year repayment plan based on their income, during which collection efforts pause. While student loans are typically not discharged at the end of the plan without an adversary proceeding, Chapter 13 can make payments more manageable in the meantime and provide temporary relief.
Role of Adversary Proceedings in Student Loan Discharge
An adversary proceeding functions like a separate lawsuit within the bankruptcy case, where the borrower must formally sue the student loan lender or servicer and present evidence that repaying the loans would cause “undue hardship.” This process includes filing a complaint, exchanging documents, and potentially testifying in court.
While it adds time and complexity to the bankruptcy process, the adversary proceeding is the mechanism that allows a judge to review the borrower’s circumstances in detail and determine whether a full or partial discharge is justified.
Recommended: Student Loans and Chapter 13 Bankruptcy
What Is the Brunner Test?
The Brunner Test is a legal standard used in many bankruptcy courts to determine whether a borrower can discharge their student loans by proving “undue hardship.”
The Three Prongs of the Brunner Standard
The Brunner Test requires meeting three main guidelines:
1. Repaying your student loans would make it impossible for you to maintain a minimal standard of living.
2. Your financial difficulties are likely to persist throughout a significant portion of your student loan repayment period.
3. You’ve shown a good-faith effort to pay back your student loans in the past.
Criticisms and Alternatives to the Brunner Test
Critics argue that the Brunner Test is outdated, overly strict, and inconsistently applied across courts. Many say the “minimal standard of living” requirement sets an unreasonably high bar, making it nearly impossible for struggling borrowers to qualify for relief. Others contend that proving long-term hardship is unrealistic and that the “good-faith effort” standard is vague and subjective, often leading to unpredictable outcomes.
Some courts use an alternative test called the totality of circumstances test. With this test, the court considers your past, present, and future financial resources, along with your living expenses and other relevant circumstances. Basically, they look at your entire financial picture to determine whether your student loans cause undue hardship and would qualify for discharge through bankruptcy.
Recommended: Finding Student Loans and Scholarships
The Takeaway
Discharging private student loans through bankruptcy is difficult, but not impossible if you can prove they cause undue financial hardship in your life. Filing and qualifying for bankruptcy is complex, however, so you’ll likely need to hire an attorney to help you navigate the process. It’s also a last resort, as it can be expensive and can negatively impact your credit for years to come.
Looking to lower your monthly student loan payment? Refinancing may be one way to do it — by extending your loan term, getting a lower interest rate than what you currently have, or both. (Please note that refinancing federal loans makes them ineligible for federal forgiveness and protections. Also, lengthening your loan term may mean paying more in interest over the life of the loan.) SoFi student loan refinancing offers flexible terms that fit your budget.
FAQ
Can private student loans be discharged through bankruptcy?
Private student loans can be discharged through bankruptcy if you can prove they cause undue hardship. When filing for bankruptcy, you’ll have to take the extra step of filing an adversary proceeding, which is essentially an additional lawsuit against your student loan lender or servicing company.
Are private student loans treated differently in bankruptcy?
Private student loans are treated differently than other types of debt in bankruptcy. You’ll have to meet a higher standard to have them discharged, typically the Brunner Test or totality of circumstances test. Plus, student loans aren’t discharged at the end of a Chapter 13 repayment plan — you’ll still owe your remaining balance, plus interest.
What are the requirements to prove undue hardship?
The requirements to prove undue hardship vary, but you typically must show the following: repaying your student loans would prevent you from maintaining a minimal standard of living, your financial situation is likely to persist throughout your repayment period, and you’ve made a good-faith effort to pay back your student loans.
What is an adversary proceeding in student loan bankruptcy cases?
An adversary proceeding in student loan bankruptcy cases is a separate lawsuit within the bankruptcy process where the borrower asks the court to determine whether their student loans can be discharged. It typically requires proving “undue hardship,” making it a more complex and evidence-based step than standard bankruptcy filings.
Have there been recent updates to bankruptcy laws for student loans?
The Student Loan Bankruptcy Improvement Act of 2025 has been introduced to Congress. It would reform discharge standards to make it easier for borrowers to have student loans eliminated without the previously strict undue-hardship requirement. The Private Student Loan Bankruptcy Fairness Act of 2025 was also introduced to Congress and aims to allow private student loans to be discharged more easily.
Photo credit: iStock/damircudic
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