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ExplainerBankruptcy LawExplainer· 4 min read· in Education

The Three-Part Brunner Test: How Undue Hardship Defines Student Loan Discharge in Bankruptcy

Discharging student debt in bankruptcy requires passing a strict three-prong legal standard known as the Brunner test. Borrowers must prove through a separate adversary proceeding that repaying their loans would make maintaining a minimal standard of living impossible.

By Nabil Faris

Consumer Bankruptcy Attorneys 35%Legal Pragmatists 35%Creditor & Taxpayer Advocates 30%
Consumer Bankruptcy Attorneys
Argue the Brunner test is overly punitive and outdated, demanding a level of hopelessness that traps well-meaning borrowers in lifelong debt.
Legal Pragmatists
Focus on the 2022 DOJ guidance as a functional compromise, valuing the standardized attestation process that bypasses courtroom litigation while keeping the Brunner framework intact.
Creditor & Taxpayer Advocates
Maintain that strict discharge standards are necessary to prevent abuse of the bankruptcy system and protect the federal taxpayer funds that back the loans.

Perspectives this story doesn't cover

  • Borrowers who successfully discharged debt pro se
  • Private student loan servicers

Key terms

Adversary Proceeding
A separate lawsuit filed within a bankruptcy case specifically to challenge the dischargeability of a debt, such as a student loan.
Undue Hardship
The legal standard a borrower must meet to discharge student loans in bankruptcy, demonstrating that repayment makes a minimal standard of living impossible.
Income-Driven Repayment (IDR)
Federal student loan repayment plans that cap monthly payments at a percentage of the borrower's discretionary income.
Stipulation
A formal legal agreement between opposing parties in a court case, such as the government agreeing to discharge a loan without requiring a trial.

Key points

  1. Student loans are not automatically cleared in bankruptcy; borrowers must file an adversary proceeding.
  2. The Brunner test requires proving you cannot maintain a minimal standard of living if forced to repay.
  3. Borrowers must show their financial distress is likely to persist for a significant portion of the repayment period.
  4. A good faith effort to repay, such as enrolling in income-driven plans, is mandatory.
  5. New 2022 DOJ guidance allows borrowers to submit an attestation form to potentially bypass a courtroom trial.

The outcome of a student loan bankruptcy discharge is determined entirely inside an "adversary proceeding"—a separate lawsuit filed within the broader bankruptcy case where a judge evaluates the borrower's financial reality. This specific legal hurdle is why standard bankruptcy clears credit card debt but leaves student loans intact, making the adversary proceeding the single most critical step for borrowers seeking relief.[2][5]

To win this proceeding, borrowers must prove "undue hardship," a standard that the U.S. bankruptcy code requires but does not explicitly define. In 1987, the Second Circuit Court of Appeals established the three-part Brunner test to define that hardship, and it remains the governing standard in the majority of U.S. bankruptcy courts today.[1]

The first prong of the Brunner test requires borrowers to demonstrate that they cannot maintain a "minimal standard of living" for themselves and their dependents if forced to repay the loans. This is a strict mathematical evaluation of current income against essential expenses like shelter, food, and basic healthcare.[1][3]

Courts scrutinize the borrower's budget to ensure expenses are truly minimal. A borrower earning $35,000 a year with $34,000 in essential living costs and a $4,000 annual loan obligation clearly fails the math, but judges will reject the claim if the budget includes non-essential spending like cable television, dining out, or private school tuition.[3][4]

The three mandatory criteria a borrower must meet to prove undue hardship under the Brunner test.

The second prong demands proof that this financial distress is not temporary. The 1987 ruling requires the borrower to show 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."[1]

Historically termed the "certainty of hopelessness" standard, satisfying this second prong usually requires concrete documentation of a permanent barrier to employment. Medical records proving a severe, long-term disability, advanced age, or a permanent cognitive impairment are the most common forms of evidence that convince a judge the financial situation is unchangeable.[3]

Historically termed the "certainty of hopelessness" standard, satisfying this second prong usually requires concrete documentation of a permanent barrier to employment.

The third and final prong evaluates whether the borrower has made a "good faith effort" to repay the loans before filing for bankruptcy. This is a backward-looking assessment of the borrower's financial behavior, payment history, and communication with their loan servicer over the life of the debt.[1][2]

Good faith does not strictly require a history of full payments, especially if the borrower never had the means to make them. Instead, courts look for enrollment in income-driven repayment (IDR) plans, utilization of authorized deferments or forbearances, and proactive communication to manage the debt.[2][3]

A borrower who ignored their loans for five years and then filed for bankruptcy will almost certainly fail the good faith prong. Conversely, a borrower who made $5 monthly payments under an IDR plan for a decade before suffering a career-ending injury has a strong case for good faith.[3][4]

The landscape of the Brunner test shifted significantly in late 2022 when the Department of Justice and the Department of Education introduced new guidance to standardize the undue hardship evaluation. This policy created a 15-page attestation form that borrowers can submit directly to the government during the adversary proceeding.[2][4]

The 2022 Department of Justice guidance allows borrowers to bypass a full trial if their attestation form proves hardship.

If the information in the attestation form satisfies the government's interpretation of the Brunner test, the Department of Justice will stipulate to the discharge, effectively agreeing to the bankruptcy without a protracted courtroom fight. This administrative off-ramp has dramatically reduced the legal costs and time required for borrowers to achieve relief.[2][5]

Despite this standardized guidance, the application of the Brunner test still varies by jurisdiction. While most appellate circuits use Brunner, the Eighth Circuit and the First Circuit utilize the "totality of the circumstances" test, which evaluates similar financial factors but allows judges more flexibility than Brunner's rigid three-prong requirement.[4]

For borrowers navigating this process, the actionable takeaway is documentation. Success in an adversary proceeding requires meticulously tracking every essential expense, securing medical evidence of long-term limitations, and maintaining a paper trail of all communication with loan servicers prior to filing.[5]

Frequently asked

Does standard bankruptcy automatically clear my student loans?

No. Unlike credit card or medical debt, student loans are exempt from standard bankruptcy discharge unless you file a separate lawsuit called an adversary proceeding and prove undue hardship.

What is an adversary proceeding?

It is a separate lawsuit filed within a bankruptcy case where you ask the bankruptcy court to determine that repaying your student loans would cause an undue hardship.

Do I have to go to trial to pass the Brunner test?

Not necessarily. Under 2022 guidance, borrowers can submit a 15-page attestation form detailing their finances. If the Department of Justice agrees the form proves hardship, they will stipulate to the discharge without a trial.

Does the Brunner test apply in every state?

It applies in the vast majority of federal circuits. However, the First and Eighth Circuits use a different standard called the "totality of the circumstances" test, which is slightly more flexible.

Sources

Source coverage

5 outlets

3 viewpoints surfaced

Consumer Bankruptcy Attorneys 35%Legal Pragmatists 35%Creditor & Taxpayer Advocates 30%
  1. [1]CourtListenerCreditor & Taxpayer Advocates

    Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987)

    Read on CourtListener
  2. [2]Federal Student Aid

    Discharge in Bankruptcy

    Read on Federal Student Aid
  3. [3]Forbes AdvisorLegal Pragmatists

    4 ways undue hardship can be proven in a student debt case

    Read on Forbes Advisor
  4. [4]LexologyLegal Pragmatists

    Student Loan Review: A Brief Analysis of Two Recent Student Loan Litigation Cases

    Read on Lexology
  5. [5]Factlen Editorial Team

    Synthesis by Factlen editorial team

    Read on Factlen Editorial Team

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