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By Dean Lintzeris, Esquire

June 1, 2023


Pursuing a college education is an investment in one's future, often necessitating financial assistance in the form of student loans. However, circumstances may arise where repaying these loans becomes an insurmountable burden, leading borrowers to consider bankruptcy as a potential solution. While discharging student loans in bankruptcy is challenging, it is not impossible. In this comprehensive guide, we will delve into the intricate process of obtaining a student loan discharge in bankruptcy, providing valuable insights and practical advice to help borrowers navigate this complex terrain.

Understanding the Challenge: Non-Dischargeability of Student Loans

By default, student loans are typically not dischargeable in bankruptcy unless borrowers can demonstrate an undue hardship. This means that borrowers must prove to the court that repaying their student loans would cause them significant financial hardship and that this hardship is likely to persist for a significant duration.

Proving Undue Hardship: The Brunner Test

To establish undue hardship, borrowers are often required to satisfy the Brunner test, which is widely used by bankruptcy courts to assess eligibility for student loan discharge. Importantly, the Brunner Test is not used by all bankruptcy courts and has gradually been falling out of favor. Nevertheless, it remains the standard employed by most bankruptcy courts. The Brunner test evaluates three key factors:

1. Standard of Living: Borrowers must demonstrate that under their current financial circumstances, they cannot maintain a minimal standard of living while repaying their loans.

2. Duration: To meet this criterion, borrowers must provide substantial evidence that their financial situation is likely to persist throughout a significant portion of the loan repayment period. This can include factors such as prolonged unemployment, disability, or other exceptional circumstances that hinder the borrower's ability to generate sufficient income to repay the loans.

3. Good Faith: Borrowers must establish that they have acted in good faith regarding their loan obligations. This involves demonstrating an honest effort to repay the loans, such as actively seeking employment, participating in loan rehabilitation programs, or considering alternative repayment options.

Alternatives to the Brunner Test

There have been several recent developments that aim to make it easier for borrowers to discharge their student loans in bankruptcy. For example, in July 2021, in the case Homaidan v. Sallie Mae, Inc., one federal court ruled that under specific circumstances, certain private student loans can be discharged in bankruptcy.

Additionally, in November 2022, the Department of Justice and Department of Education released new guidance that aims to simplify the burdensome process of showing undue hardship and make it easier for government lawyers to recommend to the court that federal student loans be discharged. Under the new guidelines, debtors will complete an “attestation form,” which the government will use to help determine whether to recommend a discharge. If debtors meet certain requirements, government lawyers may recommend a full or partial discharge.

These developments are intended to make the process of discharging student loans in bankruptcy more fair and consistent for people seeking relief on their federal student loans.

Consulting with an Attorney: A Crucial Step

Given the complex nature of bankruptcy law and the intricacies involved in proving undue hardship, seeking guidance from an experienced attorney who specializes in bankruptcy law is highly advisable. A skilled attorney can evaluate your unique financial situation, guide you through the legal process, and represent your interests in court. They will be well-versed in the nuances of student loan discharge cases and can help you compile the necessary documentation, present a compelling case, and navigate potential challenges along the way.

Building a Strong Case: Documenting Undue Hardship

To increase the likelihood of a successful student loan discharge, it is essential to compile thorough and compelling evidence of undue hardship. Some key elements to consider include:

1. Financial Documentation: Gather detailed information about your income, expenses, and debts. This can include pay stubs, tax returns, bank statements, and credit card statements. Document any exceptional circumstances that affect your financial stability, such as medical bills or a disability.

2. Employment and Education Records: Provide evidence of your efforts to secure employment or increase your earning potential. This can include job applications, correspondence with potential employers, and educational records demonstrating your pursuit of additional qualifications.

3. Communication with Loan Servicers: Maintain a record of all communication with your loan servicers, including correspondence, payment history, and any loan modification or rehabilitation efforts you have pursued.

4. Expert Opinions: If applicable, seek professional opinions or assessments that support your claim of undue hardship. This can include medical reports, disability evaluations, or vocational assessments.

Alternative Options: Exploring Repayment Alternatives

While discharging student loans in bankruptcy is a considerable undertaking, it is crucial to consider alternative options before pursuing this route. Several alternatives exist to alleviate the burden of student loan repayment, including:

1. Loan Consolidation: Consolidating multiple loans into a single loan can simplify repayment and potentially reduce monthly payments.

2. Income-Driven Repayment Plans: These plans base monthly payments on the borrower's income and family size, offering more manageable payment options.

3. Loan Forgiveness Programs: Investigate various loan forgiveness programs available to borrowers who meet specific criteria, such as public service employment or working in certain professions.

4. Deferment or Forbearance: Temporarily suspending loan payments through deferment or forbearance may provide temporary relief for borrowers facing financial hardship.


Obtaining a student loan discharge in bankruptcy can be a complex and arduous. While discharging student loans in bankruptcy is not guaranteed, consulting with a knowledgeable bankruptcy attorney and exploring alternative repayment options can provide valuable insights and potential solutions. Remember, each situation is unique, and it is crucial to weigh all available options and seek professional guidance before making any decisions.

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Best Practices for Valuing and Locating Digital Assets During Your Divorce

By Gregory Gilston, Esquire

March 1, 2023

Divorce is a difficult and emotional process, and it can become even more complicated when digital assets are involved. In today's world, many couples have accumulated significant digital assets, including cryptocurrencies, NFTs, digital photos and videos, social media accounts, and even online businesses. In this blog post, we'll explore some best practices for valuing and locating digital assets during a divorce.

1. Understand what constitutes a digital asset -- The first step in valuing and locating digital assets during a divorce is to understand what qualifies as a digital asset. This can include:

  • Cryptocurrencies such as Bitcoin, Ethereum, and Litecoin

  • Non-Fungible Tokens (NFTs)

  • Digital files such as photos, videos, and music

  • Social media accounts such as Facebook, Instagram, and Twitter

  • Online businesses and intellectual property such as websites and domain names

  • Digital storage devices such as external hard drives and cloud storage accounts

2. Gather all relevant information -- Once you have identified the digital assets in question, it is important to gather all relevant information about them. This includes login credentials, passwords, and any associated email addresses or phone numbers. Without this information, it may be difficult or even impossible to access the digital assets and accurately value them.

3. Work with a digital asset expert -- Valuing digital assets can be complex, especially when it comes to cryptocurrencies and online businesses. Consider working with a digital asset expert who can help you navigate these assets and accurately value them.

4. Use tools to locate digital assets -- Locating digital assets can be challenging, especially if one spouse is attempting to hide them. There are a number of tools available that can help you locate digital assets, including:

  • Digital forensic software that can uncover hidden files and folders

  • Blockchain explorers that can track cryptocurrency transactions

  • Social media monitoring tools that can track account activity and logins

5. Document everything -- It is essential to document everything related to digital assets during a divorce. This includes all communications between the parties, as well as any documentation related to the assets themselves. This documentation will be important in the event of any disputes or legal proceedings related to the digital assets.

In conclusion, valuing and locating digital assets during a divorce can be a complex and challenging process. However, by following these best practices, you can help ensure that all digital assets are properly accounted for and that you receive your fair share of these assets during your divorce. If you are unsure about how to proceed, consider consulting with a legal or financial expert who can help guide you through the process.

For more information on this topic, join me for an upcoming Strafford live webinar, "Digital Assets in Divorce" on Tuesday, May 2, 1:00pm-2:30pm EDT. Click this link for more information:

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Tips and tools for avoiding familial conflict during the upcoming holiday season…

By Gregory Gilston, Esquire

November 1, 2o22

With the holiday season fast approaching, people around the country are preparing to break bread with their family members. While many individuals embrace the holiday season and the cheerful vibes associated therewith, this time of the year can be very difficult for many people as well. If you are in the midst of an ongoing custody disagreement, or if your marriage is headed towards divorce, you may very well fall into this category of individuals who are dreading the upcoming holiday season.

Though your impending family interactions may seem daunting, it is important to employ certain tips and tools to minimize conflict along the way. Otherwise, interactions involving custody exchanges can turn into custody woes, conversations with in-laws can turn into screaming matches, and dinner with your soon-to-be ex-spouse can result in broken dishes and doors.

The goal should always be to have your family relationships remain conflict-free throughout the holiday season and beyond. Here are some recommendations for ways to stay civil and transparent with the opposing party in your family law matter during the holidays:

Tip #1: Communicate respectfully…

Ensure that all communications regarding custody exchanges are in writing, and well-documented. In order to accomplish this, co-parents involved in ongoing custody litigation should utilize the Our Family Wizard (OFW) platform to communicate about custody exchanges, holiday schedules, drop-off times/locations, pick-up times/locations, and coverage when one parent is unavailable. The OFW platform helps parents keep tabs on their co-parenting communications, and helps parents stay mindful of what they say to each other, and how they say it.

While some practitioners view this platform as a method for building evidence against the other parent, this platform is most effective when used as a platform for holding parents accountable, and keeping conversations focused and civil. There is a small monthly fee associated with OFW, but the burden of the cost of ongoing litigation far outweighs the burden of the subscription costs.

Tip #2: Get in, get out…

If you are driving your child(ren) to or from a custody exchange, make it quick. If you are dropping them off, say what you need to say to your child(ren) during the ride to the custody exchange. Upon arriving at the exchange location, help the kids gather their belongings and see them into the car of the other parent, without making a fuss. Wave goodbye to your child(ren), get back in your car, and drive away. If you are sad to see them go and need to shed a tear, try to refrain from displaying any emotions until you have driven away. If you have concerns about the child’s safety in the other’s parent’s vehicle (i.e.: if one parent does not have a car seat), respectfully send a written request confirming that the safety concern has been resolved, prior to the custody exchange.

The last thing you want to happen at a custody exchange is for an argument to ensue because the conditions of the exchange make you feel uneasy. While you may be justified with your concerns, the other parent may not understand your point of view which could lead to an argument during the exchange. If you have any ongoing concerns before entering into the custody exchange, ensure that they are addressed with the other parent before the custody exchange actually occurs. If these concerns could not have been addressed prior to the custody exchange, try to have a friend or family member accompany you to the exchange so that somebody can witness and document the events that do occur.

Tip #3: Don’t argue in front of the child(ren)…

Unfortunately, for many families in America, the end of the holiday season does not mark the end of the relational turmoil experienced amongst so many married couples today. Statistics show that the largest number of divorce filings in the United States often occur in the month of January. This is because many parents with minor children wait until January to avoid interfering with the holiday festivities -- for their children’s sake.

With that in mind, many couples on the brink of divorce end up spending the holiday season together anyway. But let’s face it; some people just can’t stand their spouse. They can’t stand to look at their partner, listen to their voice, or even eat a meal with them. And anything their spouse says or does is completely irritating.

For most people – this is a clear-cut sign that divorce may be imminent. Yet no matter how much an individual dislikes their partner, it is important for that person to try their best not to put this contemptuous behavior on display in front of the children. Ultimately, the more a person displays their relationship’s conflict in front of the children, the more likely it is that the kids will suffer as a result. Nevertheless, these attempts at avoiding conflict are sometimes unsuccessful.

If you feel like an argument is brewing during the holiday season, do not let the tension get past the point of no return. Before the tension escalates, give yourself a break. Get some air. Remove yourself from the situation. You are only human. Do not stay put in a situation where the tension is palpable.

However, it is important to remember that in every marriage it takes two to tango. If your partner is not capable of backing down, sometimes it is best to take the high road and physically remove yourself from the situation before the powder keg explodes. It may not feel like you are taking the high road at the time you walk away, but tensions generally deescalate when one party removes themselves from a tense situation. If the child(ren)’s safety seems at risk in the moment that tensions are heightened, offer them the chance to remove themselves from the situation as well. And while this is all occurring, try your best to maintain some perspective… think to yourself that it could be worse. Truth be told -- if an argument does occur, your holiday dinner will be a memorable one, but for all the wrong reasons.

Ultimately, everybody wants to enjoy the holiday season. However, some individuals do not look forward to spending time with their family members during this time of year… and for good reason! By employing these tips for avoiding and resolving conflict, perhaps your holiday season may be somewhat jollier this time around.

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