Short answer: Filing for bankruptcy does not, by itself, wipe out student loans. You have to take an extra step inside your bankruptcy case: file a separate lawsuit called an adversary proceeding and prove that repaying the loans would impose an "undue hardship" on you. For federal loans, a Justice Department review and attestation process announced in November 2022 has made settlements far more common — but the outcome still depends on your facts, and the rules can change. This article walks through the mechanics.
If you're not sure whether student loans can be discharged at all, start with Can Bankruptcy Erase Student Loans? for background on the legal standard. This article assumes you already know discharge is possible and want to know what filing the case actually looks like.
The legal hook: 11 U.S.C. § 523(a)(8)
Student loans are treated differently from most other debts. Under the Bankruptcy Code, they're presumed not dischargeable unless you show that repaying them would be an "undue hardship" on you and your dependents. Congress never defined "undue hardship," so courts fill in the standard case by case. Most use some version of a three-part test — sometimes called the Brunner test — that looks at:
Whether you can currently maintain a minimal standard of living if forced to repay the loans;
Whether your financial situation is likely to stay that way for a significant part of the remaining loan term; and
Whether you made a good-faith effort to repay the loans before filing (for example, exploring income-driven repayment or deferment).
This applies the same way whether you file Chapter 7 or Chapter 13. Discharging a student loan is never automatic in either chapter — it always requires the extra lawsuit described below.
Step 1: File your Chapter 7 or Chapter 13 case first
The adversary proceeding lives inside a bankruptcy case, so you need an open case before you can bring one. Which chapter fits you depends on your income, assets, and goals — that's a separate decision best made with a bankruptcy attorney, not something to reverse-engineer around the student loan question alone.
Step 2: File the adversary proceeding (a lawsuit inside your case)
An adversary proceeding is not a box you check on your bankruptcy forms — it's a formal complaint you (or your attorney) file against your loan holder(s), similar to a separate civil lawsuit, with its own filing fee, summons, and service requirements. You can generally file it any time your bankruptcy case is open, and some courts allow reopening a closed case to bring one. Your local bankruptcy court's website (linked from uscourts.gov) has the local rules and forms. Court fees change over time, so check the current filing-fee schedule on uscourts.gov before you file.
Trap to watch for: naming the right defendant matters. Federal Direct Loans are typically owned by the Department of Education and defended by DOJ; older FFEL loans, private loans, and loans held by guaranty agencies may have different holders. Naming the wrong party, or failing to properly serve the U.S. Attorney's office, can delay your case or get it dismissed on technical grounds.
Step 3: For federal loans, the DOJ attestation process kicks in
In November 2022, DOJ and the Department of Education rolled out a new internal process for evaluating undue-hardship claims on federal student loans. It remains in effect and has been periodically refined (for example, the attestation form and guidance have been updated more than once) — but administrative guidance like this can be revised or withdrawn at any time, so check justice.gov/ust for the current version before relying on any detail.
Once you file the adversary proceeding, the DOJ attorney assigned to defend the government is supposed to send you an attestation form. You fill it out and return it with supporting information about:
Current income and necessary living expenses — can you maintain a minimal standard of living while repaying?
Future ability to repay — age, health, disability, education, employment history. The guidance flags certain situations, such as being 65 or older or having a disability that limits earning income, as creating a presumption you can't repay in the future. Confirm the current criteria directly from the DOJ guidance, since details can change.
Good-faith effort to repay in the past — whether you made payments when you could, pursued income-driven repayment or deferment, and didn't simply walk away.
DOJ and the Department of Education review your attestation against these factors. If they conclude you meet the standard, DOJ attorneys are directed to stipulate to the facts and recommend the court grant a full or partial discharge — resolving the case by agreement rather than trial.
Step 4: Settlement vs. trial
Because of the attestation process, many federal adversary proceedings now end in a negotiated stipulation rather than a contested trial: the government agrees, based on your documentation, that some or all of the debt should be discharged, and the judge signs off. That's a meaningful shift from the old system, where these cases were expensive and rarely worth pursuing for many borrowers. Settlement isn't guaranteed, though. Possible outcomes:
Full discharge — the entire student loan debt is wiped out.
Partial discharge — part of the balance is discharged (for example, accrued interest) while some principal remains, or payments are restructured.
No discharge / continued litigation — if DOJ concludes the facts don't support undue hardship, the case may proceed to a contested hearing where a judge decides.
Private student loans are different. The DOJ/DOE attestation process only applies to federal loans defended by the Justice Department. Private lenders aren't bound by it, and there's no equivalent nationwide settlement framework — an adversary proceeding against a private lender is more likely to be genuinely contested and may benefit even more from an attorney's help. (Note that some private loans that don't meet the Code's definition of a qualified educational loan may be treated as ordinary dischargeable debt; an attorney can tell you whether yours qualifies.)
Beyond the attestation factors above, a long stretch of low income relative to the loan balance carries more weight than a temporary dip, and dependents or unavoidable expenses like medical costs or caregiving strengthen the picture.
What to do
Talk to a bankruptcy attorney (or legal aid, a law-school clinic, or your court's self-help center) before you file, and ask whether an undue-hardship case looks realistic for you.
File your Chapter 7 or Chapter 13 case.
File the adversary proceeding — don't assume discharge happens automatically when your general bankruptcy discharge is entered.
If your loans are federal, complete the DOJ attestation form thoroughly and honestly, with documentation of your income, expenses, and repayment history.
Check studentaid.gov for how a discharge interacts with your loan servicing and other federal relief programs you may qualify for.
Respond to every deadline — the adversary proceeding runs on its own litigation schedule, and missing a deadline can mean a default judgment against you.
Beware of scams
Be careful of any company that promises to "erase" your student loans for an upfront fee, urges you to stop paying and pay them instead, or claims a special relationship with the Department of Education. Legitimate discharge happens through the federal court system or the Department of Education's own programs — never through a company charging you in advance. If you can't afford a private attorney, look for legal aid, a law-school clinic, or your court's self-help resources, and only use credit-counseling agencies approved by the U.S. Trustee Program.
Key takeaways
Student loans are not automatically discharged in bankruptcy — you must file a separate adversary proceeding and prove undue hardship.
Since November 2022, a DOJ/Department of Education attestation process has made settlements common for federal loans, but the guidance can evolve — check justice.gov/ust for the current version.
Age, disability, long-term low income, and documented good-faith repayment efforts are the facts that carry the most weight.
Private student loans aren't covered by the DOJ process and are more likely to require a contested trial.
This applies the same way in Chapter 7 and Chapter 13 — the chapter you file doesn't change the need for an adversary proceeding.
Frequently asked questions
Do I need a lawyer to file the adversary proceeding myself?
You're not required to have one, but adversary proceedings are formal federal litigation with their own rules, deadlines, and service requirements. Most people are better served getting help from a bankruptcy attorney, legal aid office, or law-school clinic than attempting this alone.
Does filing the adversary proceeding delay my regular bankruptcy discharge?
Not necessarily — it's a separate lawsuit that can run on its own timeline, and your general discharge for other debts can often still be entered while the student loan case continues. Ask your attorney how this works in your specific case.
What if I already got my bankruptcy discharge and never filed an adversary proceeding for my student loans?
Many courts allow you to reopen a closed case to file an adversary proceeding later, though there may be a fee and some courts apply extra scrutiny. Ask an attorney or your court's self-help center about reopening in your district.
Is the DOJ attestation process the same everywhere, and will it stay this way?
It applies nationwide to federal loans where DOJ represents the Department of Education, but results still depend on your facts. This is administrative guidance, not a statute, so it can be revised or withdrawn — check the current version at justice.gov/ust before relying on specifics.
Can I discharge only part of my student loans and keep paying the rest?
Yes — courts and the DOJ attestation process can result in a partial discharge, where some of the balance (often accrued interest) is wiped out while you continue owing and repaying the remainder, sometimes under adjusted terms.
This is general legal information, not legal advice, and does not create an attorney-client relationship. Be wary of for-profit debt-relief companies and non-attorney "petition preparers" who charge upfront fees or claim they can guarantee a discharge — use a licensed bankruptcy attorney, legal aid, or a U.S. Trustee-approved credit counseling agency instead.
Frequently asked questions
Do I need a lawyer to file the adversary proceeding myself?
You're not required to have one, but adversary proceedings are formal federal litigation with their own rules, deadlines, and service requirements. Most people are better served getting help from a bankruptcy attorney, legal aid office, or law-school clinic than attempting this alone.
Does filing the adversary proceeding delay my regular bankruptcy discharge?
Not necessarily - it's a separate lawsuit that can run on its own timeline, and your general discharge for other debts can often still be entered while the student loan case continues. Ask your attorney how this works in your specific case.
What if I already got my bankruptcy discharge and never filed an adversary proceeding for my student loans?
Many courts allow you to reopen a closed case to file an adversary proceeding later, though there may be a fee and some courts apply extra scrutiny. Ask an attorney or your court's self-help center about reopening in your district.
Is the DOJ attestation process the same everywhere, and will it stay this way?
It applies nationwide to federal loans where DOJ represents the Department of Education, but results still depend on your facts. This is administrative guidance, not a statute, so it can be revised or withdrawn - check the current version at justice.gov/ust before relying on specifics.
Can I discharge only part of my student loans and keep paying the rest?
Yes - courts and the DOJ attestation process can result in a partial discharge, where some of the balance (often accrued interest) is wiped out while you continue owing and repaying the remainder, sometimes under adjusted terms.
This article is general legal information, not legal advice, and may not reflect the most current law or the law in your jurisdiction. Laws vary by state and change over time. For advice about your specific situation, consult a licensed attorney.
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