Q: can federal student loan debt be included in a bankruptcy?
A: Generally, since the 2005 Bankruptcy Reforms, both federal and private student loans are presumed to be nondischargeable in bankruptcy unless there is an 'undue hardship.' This term is not defined by the code, and it has been left to the Courts all over the country to decide case by case what is undue hardship in your specific situation. A separate motion needs to be filed in the pending bankruptcy case to challenge the loan and force a evidenciary hearing where hardship can be determined. The courts have not been kind to debtors and have adopted a narrow view of undue hardship, therefore the vast majority of student loans are not discharged in bankruptcy. You should get a free consultation with an experienced bankruptcy attorney to discuss this very important and complicated issue.
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