Prong 1: Current Inability to Pay
Can you maintain a minimal standard of living while repaying? Courts examine current income, necessary expenses, and dependents. You do not need to be destitute -- just show that repayment would force you below a minimal standard.
Prong 2: Persistence of Circumstances
Will your situation persist for a significant portion of the repayment period? Courts look at age, health, education, job skills, employment history, and any circumstances unlikely to change.
Prong 3: Good Faith Effort to Repay
Have you made a good faith effort? Courts consider payments made, income-driven repayment enrollment, employment efforts, and income maximization. Enrolling in IDR at $0 counts as good faith.
Frequently Asked Questions
Do I have to meet all three prongs?
In Brunner circuits, yes. But the 2022 DOJ guidance instructs a more holistic view. Some circuits use the totality of circumstances test instead.
What evidence do I need?
Prong 1: pay stubs, tax returns, budget. Prong 2: medical records, employment records, job search logs. Prong 3: loan payment history, IDR enrollment, employment history.
Has the Brunner test been overturned?
Not yet, but it is under significant pressure. The 2022 DOJ guidance effectively softened it. Several courts have adopted alternative tests. Legislative efforts continue.
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