Document Type

Research Memorandum

Publication Date




Under title 11 of the United States Code (the “Bankruptcy Code”), student loan debt is typically non-dischargeable in bankruptcy, except for circumstances in which the failure to discharge “would impose an undue hardship on the debtor and the debtor’s dependents.” However, the Bankruptcy Code does not define “undue hardship.” Instead, Congress “left it up to the various Bankruptcy Courts to utilize their discretion in defining what that term means after an analysis of the statute and a review of applicable legislative history.”

In determining what constitutes an “undue hardship,” a majority of courts rely on the three-prong Brunner test formulated by the United States Court of Appeals for the Second Circuit. Under the Brunner test, to prove a debt imposes an “undue hardship,” a debtor must show:

(1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.

This test imposes a difficult burden on the debtor, “in light of the clear congressional intent exhibited in section 523(a)(8) to make the discharge of student loans more difficult than that of other nonexcepted debt.” Failure to satisfy any of the elements results in a finding of no discharge.

There are two approaches in evaluating a debtor’s additional circumstances under the second prong of the Brunner test: (1) the additional circumstance must occur after the debtor took out the student loans or must have since been exacerbated, and (2) the additional circumstance could be something that was already present when the debtor took out the student loan. Discharge of student loan debt is possible under both approaches, but the first approach narrows the scope of debtors who can meet their burden under the Brunner test. Part I of this memorandum discusses the “additional circumstances” requirement of the Brunner test. Then, part II analyzes both approaches.


To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.