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When a borrower asks a bankruptcy court to discharge student loans, the central legal question is whether repaying them would impose an "undue hardship" under 11 U.S.C. §523(a)(8). Congress never defined the phrase, so courts built tests around it. The most widely used is the three-prong Brunner test, from the 1987 decision Brunner v. New York State Higher Education Services Corp. Understanding its three prongs is the key to understanding these cases.
Prong One: Present Inability to Maintain a Minimal Standard of Living
The first prong asks whether, based on your current income and expenses, you can maintain a minimal standard of living for yourself and your dependents if you are forced to repay the loans. "Minimal" does not mean poverty, but courts scrutinize discretionary spending. The borrower must show that paying the loans would push the household below a basic standard of living. This is a snapshot of the present moment — what your finances look like today.
Prong Two: Persistence of the Hardship
The second prong asks whether your difficult financial circumstances are likely to persist for a significant portion of the loan repayment period. A temporary setback — a few months of unemployment with good prospects of recovery — generally will not satisfy this prong. Courts look for "additional circumstances" suggesting the hardship is durable: a permanent disability, a chronic medical condition, advancing age, caregiving obligations, or a long history of low income despite effort. This is the prong that historically tripped up the most borrowers under strict applications of Brunner.
Prong Three: Good-Faith Effort to Repay
The third prong asks whether you have made good-faith efforts to repay the loans. Courts consider whether you made payments when you were able, whether you attempted to enroll in income-driven repayment plans, whether you sought deferment or forbearance appropriately, and whether you generally tried to manage the debt rather than ignore it. A borrower who never made any payment and never explored repayment options may struggle on this prong, while one who genuinely tried and still cannot keep up presents a stronger case.
All Three Prongs — and the Totality Alternative
Under Brunner, a borrower generally must satisfy all three prongs to win discharge; failing any one can defeat the claim. Not every court uses Brunner, however. Several circuits — some openly critical of Brunner as unduly rigid — apply a "totality of the circumstances" standard instead, weighing the borrower's past, present, and reasonably reliable future finances together rather than treating the prongs as separate hurdles. Which test applies depends on the circuit where your bankruptcy is filed, which is one reason these cases benefit from counsel familiar with your jurisdiction.
How the 2022 Attestation Process Maps onto Brunner
The November 17, 2022 DOJ and Department of Education attestation process (justice.gov) is structured to gather exactly the information these tests require: present income and expenses (prong one), circumstances bearing on whether the hardship will persist (prong two), and a record of repayment efforts (prong three). By standardizing how that information is collected and assessed, the process makes it easier for the government to recognize when a borrower's facts meet the standard. Reflecting cases brought under this process, studentaid.gov reports that courts granted full or partial discharge in approximately 98% of cases decided November 2022 through March 2024. That figure is windowed and attributed; it is not a promise. No outcome is guaranteed; whether you satisfy the test depends on your facts and a court's decision. People's Justice is not a law firm and does not provide legal advice; we connect you with licensed attorneys, and we are not a government agency.
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The Adversary Proceeding, Step by Step
Discharging student loans is not automatic in bankruptcy — you must file a separate lawsuit within your case called an adversary proceeding and prove undue hardship under 11 U.S.C. §523(a)(8). Under FRBP 4007(b) the request can be brought at any time and there is no separate filing fee for this proceeding. The November 17, 2022 DOJ and Education Department attestation process is used inside this proceeding. No outcome is guaranteed; the result depends on your facts and a court's decision.
The DOJ Attestation Form
On November 17, 2022, the Department of Justice and Department of Education introduced a sworn attestation form that streamlined how student-loan discharge requests are evaluated in bankruptcy. Government attorneys use the disclosed income, assets, and expenses to assess undue hardship under 11 U.S.C. §523(a)(8) and can recommend full or partial discharge when the criteria are met. The guidance does not bind courts. No outcome is guaranteed; the result depends on your facts and a court's decision.
Federal vs. Private Student Loans in Bankruptcy
Federal and private student loans follow different paths in bankruptcy. Federal loans require proving undue hardship under 11 U.S.C. §523(a)(8) through an adversary proceeding. Many private loans are treated as general unsecured debt and may be discharged without proving undue hardship at all (studentaid.gov; CFPB). Knowing which loans you hold is the first step. No outcome is guaranteed; the result depends on your facts and a court's decision.
Discharging Student Loans in Bankruptcy Lawsuit
Student loans are not automatically dischargeable in bankruptcy, but they are not impossible to discharge either. Federal student loans can be discharged by proving undue hardship under 11 U.S.C. §523(a)(8), which most courts evaluate using the three-prong Brunner test (some circuits use a totality-of-circumstances standard). This requires filing a separate lawsuit within your bankruptcy called an adversary proceeding. A November 17, 2022 Department of Justice and Department of Education guidance and attestation form streamlined the process — and studentaid.gov reports that courts granted full or partial discharge in roughly 98% of cases decided November 2022 through March 2024. Private student loans are treated as general unsecured debt and are dischargeable without undue-hardship proof. People's Justice is not a law firm; we connect you with licensed attorneys who can evaluate whether discharge may be possible for you.
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