What Is the Brunner Test?
The Brunner test is the legal standard used by most federal courts to determine whether a student loan borrower has demonstrated the "undue hardship" required to discharge student loans in bankruptcy. It comes from Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987). Despite being nearly 40 years old and widely criticized, it remains the dominant test in most circuits.
Under Brunner, you must prove all three prongs: (1) you cannot maintain a minimal standard of living, (2) additional circumstances exist showing the situation is likely to persist, and (3) you have made good-faith efforts to repay the loans.
Prong 1: Minimal Standard of Living
You must show that, based on current income and expenses, you cannot maintain a minimal standard of living for yourself and your dependents while repaying the student loans. Courts typically compare your income to the federal poverty guidelines. If your income minus necessary expenses leaves insufficient funds to make loan payments, this prong is satisfied.
"Minimal" means basic necessities -- housing, food, utilities, transportation, medical care. Courts will scrutinize your budget: cable TV, dining out, and gym memberships may be considered non-essential. You must demonstrate genuine financial hardship, not merely inconvenience.
Prong 2: Persistence of Hardship
You must show "additional circumstances" indicating your financial hardship will continue for a significant portion of the repayment period. Courts look for: chronic illness or disability, advanced age with limited earning potential, lack of marketable job skills, prolonged unemployment despite good-faith job searches, and caring for dependents with special needs.
This is often the hardest prong. Courts have denied discharge to young, healthy borrowers -- reasoning that their situation might improve. The key is documenting why your circumstances are unlikely to change: medical records, vocational assessments, employment history, and age/education factors.
Prong 3: Good-Faith Effort to Repay
You must show that you made good-faith efforts to repay the loans. This includes: making payments when you could afford to, exploring income-driven repayment plans, communicating with your loan servicer, and not defaulting immediately after graduation. Courts also consider whether you attempted to minimize expenses and maximize income.
Enrolling in income-driven repayment and making $0 payments (because your income is too low) can count as good faith. The key is showing you engaged with the repayment process rather than ignoring the loans entirely. Explore all forgiveness options before filing.
The DOJ's 2022 Guidance
In November 2022, the Department of Justice issued new guidance directing government attorneys to recommend discharge in cases meeting certain criteria, rather than fighting every case. This was a significant shift. The guidance considers: whether the borrower's expenses exceed income, whether the borrower has health issues or disabilities, whether the borrower is older with limited earning potential, and the length of time in repayment.
While this guidance does not change the Brunner test itself, it means the government is less likely to contest your case if your circumstances clearly warrant discharge. This has made student loan discharge through bankruptcy significantly more achievable.
Alternative Test: Totality of Circumstances
The Eighth Circuit uses a "totality of the circumstances" test instead of Brunner. This more flexible approach considers all relevant factors holistically rather than requiring strict satisfaction of three separate prongs. Some courts in other circuits have also moved toward a more flexible application of Brunner that resembles the totality approach.
In January 2023, a federal bankruptcy judge in the Southern District of New York (In re Rosenberg) called for abandoning Brunner entirely. While not binding precedent, it signals a growing judicial movement toward making student loan discharge more accessible.
How to File for Student Loan Discharge
Student loan discharge requires filing an adversary proceeding -- a separate lawsuit within your bankruptcy case. Step 1: File your bankruptcy petition (Chapter 7 or Chapter 13). Step 2: File a complaint to determine dischargeability (Adversary Proceeding). Step 3: Serve the complaint on your student loan servicer/holder. Step 4: Litigate or negotiate -- many cases settle for partial discharge. Step 5: Obtain a judgment from the court.
This is one area where having an attorney is strongly recommended. The adversary proceeding involves discovery, potential depositions, and a trial if the case does not settle. Some bankruptcy attorneys handle these on contingency. Pro se filing of the bankruptcy itself is possible, but the adversary proceeding is complex.
Building Your Case
Document everything: tax returns (3-5 years), monthly budget with receipts, medical records if applicable, employment history and job search efforts, correspondence with loan servicers, and evidence of any IDR enrollment. Get expert support: vocational expert testimony about earning potential, medical expert testimony about disability/health, and financial expert testimony about budget analysis.
Cases with strong documentation succeed more often. The more evidence you can provide showing persistent hardship despite good-faith efforts, the stronger your case under any test.
Explore All Topics
The Three Prongs of the Brunner Test -- Explained in Detail
Good Faith Requirement -- What Courts Really Look For
Persistent Effort -- Building Your Case Over Time
Totality of Circumstances Test -- The Brunner Alternative
Partial Student Loan Discharge -- Reducing What You Owe
Adversary Proceeding Process -- How to File for Discharge
DOJ 2022 Guidance -- What Changed for Student Loan Discharge
Alternatives to the Brunner Test -- Other Paths to Relief
Recent Student Loan Discharge Cases -- What Courts Are Deciding
Frequently Asked Questions
Can student loans really be discharged in bankruptcy?
Yes. Despite the common myth, student loans can be discharged in bankruptcy if you demonstrate undue hardship. The process requires an adversary proceeding (a mini-trial), but the 2022 DOJ guidance has made it significantly more achievable for qualifying borrowers.
Do I have to be disabled to pass the Brunner test?
No. Disability is one factor courts consider, but it is not required. Other qualifying circumstances include: advanced age, lack of marketable skills, prolonged unemployment, family obligations, and any other factors showing persistent inability to repay.
What percentage of people who try actually get their student loans discharged?
Recent studies show that borrowers who file adversary proceedings succeed in getting full or partial discharge approximately 40-50% of the time. The success rate has increased since the 2022 DOJ guidance. The biggest barrier is not the legal standard -- it is that most people never try.
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