Bankruptcy discharges most student loans only when repaying them would impose an undue hardship on you and your dependents, and you ask the bankruptcy court for that in a separate action called an adversary proceeding. A regular Chapter 7 or Chapter 13 discharge leaves most government-funded student loans in place. For federal loans, a Justice Department process announced in November 2022 uses an attestation form to help the government assess your request, and the Justice Department still posted that process as of November 2026.
You get rid of most student loans in bankruptcy only by proving in a separate adversary proceeding that repaying them would impose an undue hardship on you and your dependents, because a standard Chapter 7 or Chapter 13 discharge does not cover them.
Your student loan balance follows you from year to year, and the payments crowd out everything else. You have heard that bankruptcy never touches student loans. Over the last 90 days, our website showed up in Google for 193 different searches about student loans, so you share this question with plenty of other people. This guide shows Las Vegas borrowers like you what the law requires, how the bankruptcy court decides and what your other options are. Read it before you give up on relief.
Can you get rid of student loans in bankruptcy?
Federal law makes discharge hard, not impossible. Under 11 U.S.C. 523(a)(8), student loans are excepted from discharge unless keeping them would impose an undue hardship on you and your dependents. Federal Student Aid’s bankruptcy page says discharge in bankruptcy is not an automatic process. You have to file a separate action, known as an adversary proceeding, asking the court to find undue hardship.
That separate action is its own lawsuit inside your bankruptcy case, and a student loan debt discharge depends on its outcome. Under Federal Rule of Bankruptcy Procedure 7001(f), a proceeding to determine whether a debt is dischargeable is an adversary proceeding. Your regular discharge order alone does not decide it. Plan for that extra step from the start.
Which student loans the rule covers
Section 523(a)(8) covers several kinds of education debt. It covers loans made, insured or guaranteed by a government unit, or made under a program funded in whole or in part by a government unit or nonprofit institution, and obligations to repay an educational benefit, scholarship or stipend. It also covers other loans that count as a qualified education loan, which tax law defines as debt incurred solely to pay qualified higher education expenses. Gather the paperwork for every loan you have before your first meeting.
Some private loans fall outside that definition. The Consumer Financial Protection Bureau’s 2022 education loan report says that if a private student loan is not a qualified education loan, an adversary proceeding and a showing of undue hardship are not required to discharge it. Its archived guidance gives one example: loans where the amount was higher than the cost of attendance. Ask your attorney to review each private loan against the definition.
What is undue hardship for student loans?
No single test decides your case. Federal Student Aid says bankruptcy courts do not use a single test to determine undue hardship, and it lists factors a court is able to consider. The Justice Department’s 2022 guidance calls the Brunner test, from a 1987 federal appeals case, the most common framework. Other courts use a totality of circumstances test, and your financial hardship has to satisfy whichever test your court applies.
Under Brunner, the court has to find three things. You cannot presently maintain a minimal standard of living if required to repay the loan, your financial situation is likely to persist for a significant portion of the repayment period, and you made good faith efforts in the past to repay. Each part needs evidence about your income, expenses and payment history. Start collecting that evidence now.
The court decides on its own
The judge makes an independent finding. The Justice Department’s guidance quotes the Supreme Court’s Espinosa decision: the bankruptcy court must make an independent determination of undue hardship even if the creditor fails to object or appear. A lender staying silent does not win your case for you. Prepare your proof as if every point will be tested.
How does the Justice Department student loan process work?
In November 2022, the Justice Department and the Department of Education announced a new process for cases where people seek to discharge federal student loans in bankruptcy. Under it, you complete an attestation form that helps the government assess your request. The Justice Department’s fact sheet says the bankruptcy judge makes the final decision, and that the Justice Department has a role in it by supporting discharge in appropriate cases. It also says the government will consider supporting a partial discharge where a full one is not supported.
The guidance builds in presumptions for some borrowers. It says a presumption that your inability to repay will persist applies in certain circumstances, including when you are 65 or older or have a disability or chronic injury affecting your income. It also says the government’s position does not bind the bankruptcy court. Tell your attorney about your age, health and work history early.
Where things stood in November 2026
The process was still posted in November 2026: the U.S. Trustee Program’s student loan guidance page, updated March 17, 2026, lists the attestation form dated May 2025. It says these adversary cases are handled by the U.S. Attorney’s office for the district where your bankruptcy is pending. The form itself says it goes to the Assistant U.S. Attorney handling your case. You file it with the court only if the court or an attorney directs you to. Check that page for the current form before you start.
What do Chapter 7 and Chapter 13 do with your student loans?
Neither chapter erases most student loans on its own, so they sit among the non-dischargeable debts unless you prove undue hardship. The U.S. Courts’ Chapter 7 basics list certain loans made or guaranteed by a government unit among the debts not discharged, and the Chapter 13 basics say the same for most government funded or guaranteed educational loans. Both chapters still matter for your other debts. Ask how each chapter treats everything else you owe.
| Your student loans | Chapter 7 | Chapter 13 |
|---|---|---|
| Standard discharge | Does not cover certain government made or guaranteed loans | Does not cover most government funded or guaranteed loans |
| Undue hardship request | Separate adversary proceeding | Separate adversary proceeding |
| Collection while the stay is in effect | Generally paused by the automatic stay | Generally paused by the automatic stay |
The automatic stay and collection
Filing generally pauses collection, but only while the automatic stay lasts. Under 11 U.S.C. 362(a)(6), the automatic stay stops any act to collect a claim that arose before your case. The U.S. Courts’ Chapter 13 basics say that while the stay is in effect, creditors generally are not allowed to start or continue lawsuits, wage garnishments or even phone calls demanding payment. Our guide on how the automatic stay works explains the details.
What are your options if bankruptcy is not the right fit for your student loans?
Federal Student Aid lists several programs outside bankruptcy. Federal repayment plans changed after a 2025 law, so check the current plans on studentaid.gov before you choose one. Each program has its own eligibility rules. These are the main ones:
- Income-driven repayment: your monthly payment is based on your income and family size.
- Deferment or forbearance: you temporarily suspend payments, but in most cases interest accrues and your balance grows.
- Direct Consolidation Loan: you combine federal loans to lower your monthly payment or gain access to forgiveness programs.
- Public Service Loan Forgiveness: forgives the remaining balance on Direct Loans after the equivalent of 120 qualifying monthly payments under an accepted plan, along with the program’s other requirements.
- Total and permanent disability discharge and closed school discharge: each discharges federal loans if you qualify.
Default changes the picture. Federal Student Aid says a Direct or FFEL loan is in default if you miss scheduled payments for at least 270 days, and that once a defaulted loan is accelerated, the loan holder has the right to take money from your wages or federal payments such as tax refunds. Its collections page said in November 2026 that those collections were paused, so check the collections page on studentaid.gov for the current status before you rely on it. Call your servicer before your loan reaches default.
How Vohwinkel Law helps Las Vegas borrowers with student loans
An undue hardship case depends on evidence. Vohwinkel Law handles Chapter 7 and Chapter 13 bankruptcy for Las Vegas and Henderson borrowers, and you get one office that weighs your student loans against the rest of your debts. Our page on student loan debt after bankruptcy covers what happens to loans that remain. My advice: keep every record of payments, deferments and servicer letters, because good faith efforts to repay are part of the Brunner test.
If wage garnishment is your biggest pressure, read our article on whether Chapter 13 stops wage garnishment in Las Vegas. Bring your loan statements, recent pay stubs and a list of your monthly expenses to your first meeting. My second piece of advice: pull your federal loan history from studentaid.gov before that meeting so nothing is missing.
Student loan and bankruptcy questions Las Vegas borrowers ask
Does bankruptcy stop student loan wage garnishment?
While the automatic stay is in effect, creditors generally are not allowed to continue wage garnishments, according to the U.S. Courts. Federal Student Aid also lists being in bankruptcy as one example of a valid objection to a Treasury offset of federal payments such as tax refunds. The stay pauses collection but does not discharge the loan. Tell your attorney about any garnishment notice right away.
Do I have to file a lawsuit to discharge my student loans?
Yes, for loans covered by section 523(a)(8). You have to file a separate adversary proceeding asking the court to find undue hardship. Bankruptcy Rule 7001(f) treats a dischargeability question as that kind of proceeding. Budget time and evidence for it.
Are private student loans treated differently?
Sometimes. The CFPB’s 2022 report says a private student loan that is not a qualified education loan does not require an adversary proceeding or a showing of undue hardship. A private loan that meets the definition is judged under the undue hardship standard. Your attorney checks each loan against the definition.
Will a court discharge only part of my student loans?
It is possible. Federal Student Aid lists a full discharge and a partial discharge, with some portion still owed, among the outcomes of the court’s decision. The Justice Department also says it will consider supporting a partial discharge where appropriate. Ask your attorney whether a partial request fits your facts.
Will the court discharge my loans if the lender does not object?
Not automatically. The Supreme Court’s Espinosa decision, quoted in the Justice Department’s guidance, says the court must make an independent determination of undue hardship even if the creditor fails to object or appear. You still need to prove your case. Bring complete records to every hearing.
When is a federal student loan in default?
For a Direct Loan or a Federal Family Education Loan, you are in default if you do not make scheduled payments for at least 270 days. After a defaulted loan is accelerated, Federal Student Aid says the loan holder has the right to collect from your wages and federal payments, so check its collections page for the current status. Contact your servicer about repayment options before that point.
You deserve a straight answer about your student loans and your options. Vohwinkel Law offers a free consultation, with payment plans available. To talk through student loans and bankruptcy in Las Vegas or Henderson, call (702) 735-1500.
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