Student Loan Discharge in Florida Bankruptcy: The 2026 DOJ Attestation Process

For decades, the conventional wisdom was that student loans could not be discharged in bankruptcy. While that was never literally true -- 11 U.S.C. Section 523(a)(8) has always permitted discharge upon a showing of "undue hardship" -- the practical reality was that the standard was so difficult to meet, and the cost of litigation so high relative to the uncertain outcome, that most bankruptcy attorneys did not even attempt it.

That landscape has shifted dramatically. Beginning in late 2022, the Department of Justice introduced new guidance fundamentally changing how the federal government evaluates student loan discharge cases. The result is a more structured, evidence-based process that has made discharge materially more accessible for qualifying borrowers in Florida and nationwide.

The Historical Problem: Brunner and Its Legacy

The standard for student loan discharge in most federal circuits, including the Eleventh Circuit that covers Florida, derives from Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987). The Brunner test requires the debtor to prove three elements:

1. Current inability to pay: Based on current income and expenses, the debtor cannot maintain a minimal standard of living and repay the student loans.
2. Persistence of circumstances: Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period.
3. Good faith effort: The debtor has made good faith efforts to repay the loans.

Courts applying Brunner set the bar extremely high. Debtors were expected to demonstrate essentially permanent disability or a complete inability to ever earn enough to repay their loans. Temporary hardship, underemployment, and even chronic illness were often deemed insufficient. The result was that student loan discharge was effectively unavailable to all but the most severely impaired borrowers.

The DOJ Attestation Process

In November 2022, the Department of Justice and the Department of Education jointly announced new guidance for evaluating undue hardship claims in student loan bankruptcy cases. This guidance directs DOJ attorneys to use a structured attestation form to evaluate whether the government should consent to discharge, partially consent, or oppose the borrower's adversary proceeding.

The attestation process considers multiple factors organized into categories:

Factor 1: Present Inability to Pay

The DOJ examines whether the borrower's current income, minus reasonable expenses, leaves sufficient income to make payments on the student loans while maintaining a minimal standard of living. The analysis uses objective benchmarks including:

• Whether the borrower's income is at or below 200% of the federal poverty guidelines
• Whether the borrower is eligible for a $0 payment under income-driven repayment plans
• Whether the borrower's expenses are reasonable relative to IRS collection standards

Factor 2: Persistence of Inability

Rather than requiring a showing of permanent disability, the DOJ guidance recognizes a broader range of circumstances that indicate persistent inability to pay:

• Age of the borrower (particularly borrowers over 55)
• Chronic health conditions that limit earning capacity
• Length of time the borrower has been in financial distress
• Whether the borrower obtained a degree and whether it led to increased earning capacity
• The borrower's work history and future earning prospects
• Whether the loan balance has grown since graduation (negative amortization)

Factor 3: Good Faith

The DOJ assesses whether the borrower made good faith efforts to repay, including:

• Payment history on the loans
• Whether the borrower enrolled in income-driven repayment plans when available
• Whether the borrower maximized income and minimized expenses
• Time elapsed between receiving the education and filing bankruptcy

The Adversary Proceeding Requirement

Student loans are not discharged automatically in bankruptcy. To seek discharge, the debtor must file a separate lawsuit within the bankruptcy case called an adversary proceeding. This is a formal complaint filed under Federal Rule of Bankruptcy Procedure 7001, naming the student loan creditor as the defendant.

The adversary proceeding follows its own timeline and procedures:

Filing in Florida's Three Bankruptcy Districts

Adversary proceedings for student loan discharge can be filed in any of Florida's three bankruptcy districts, depending on where the underlying bankruptcy case is pending. Each district has its own procedural requirements for adversary proceedings:

• Northern District (NDFL): Adversary proceedings follow the NDFL's Local Rules for contested matters. The court schedules an initial pretrial conference after the answer is filed.
• Middle District (MDFL): The MDFL's robust caseload includes a growing number of student loan adversary proceedings. The court uses its standard pretrial procedures, and mediation may be ordered in contested cases.
• Southern District (SDFL): The SDFL handles adversary proceedings through its general contested matter procedures. Given the district's diverse population, student loan discharge cases may involve complex income histories and international education credentials.

Attorney Fraser is admitted to practice in all three Florida bankruptcy districts and the DC bankruptcy court, and can file adversary proceedings for student loan discharge in any of these courts.

Federal vs. Private Student Loans

The DOJ attestation process applies only to federal student loans held or guaranteed by the Department of Education. Private student loans -- those issued by banks, credit unions, and private lenders -- are not covered by the DOJ guidance. For private loans, the traditional adversary proceeding process applies, and the lender will typically contest the discharge vigorously.

However, the same undue hardship standard under Section 523(a)(8) applies to both federal and private loans. A court that finds undue hardship can discharge private student loans just as it can discharge federal ones. The difference is that private lenders are more likely to litigate, whereas the DOJ attestation process creates a pathway for consensual resolution of federal loan discharge.

Partial Discharge and Negotiated Outcomes

Not every student loan discharge case results in a full elimination of the debt. The DOJ attestation process recognizes that outcomes may include:

• Full discharge: The entire student loan balance is eliminated.
• Partial discharge: A portion of the balance is discharged, and the remainder is restructured on affordable terms.
• Interest-only discharge: Accrued interest and fees are discharged, but the principal balance remains.
• No discharge: The DOJ opposes discharge, and the case proceeds to trial if the debtor chooses to pursue it.

Negotiated partial discharge has become increasingly common under the attestation framework. For borrowers who do not meet every factor for full discharge but demonstrate significant hardship, a partial resolution can still provide meaningful relief.

Who Should Consider Seeking Discharge

Based on the DOJ attestation factors and the Brunner test as applied in the Eleventh Circuit, the strongest candidates for student loan discharge in Florida include:

• Borrowers over age 55 with limited remaining earning years
• Borrowers with chronic health conditions or disabilities that impair earning capacity
• Borrowers whose loan balances have grown substantially due to negative amortization despite good-faith repayment efforts
• Borrowers who did not complete their degree or whose degree did not lead to increased earning capacity
• Borrowers who have been in financial distress for extended periods (10+ years)
• Borrowers whose income is at or below 200% of the federal poverty guidelines

This article is for general informational purposes only and does not constitute legal advice. Consult with a licensed attorney for advice specific to your situation.