What is the undue hardship test in Florida?

Florida is in the Eleventh Circuit, which adopted the Brunner test in In re Cox, 338 F.3d 1238 (11th Cir. 2003). The borrower must prove all three parts: that they cannot maintain a minimal standard of living while repaying, that the hardship is likely to persist for a significant part of the repayment period, and that they made good-faith efforts to repay.

What is the Justice Department attestation form?

Under guidance issued on November 17, 2022, a borrower seeking to discharge federal student loans completes a sworn attestation form describing income, expenses, assets, future prospects, and past repayment efforts. A Justice Department attorney reviews it and, where the facts support it, recommends that the court grant a full or partial discharge. The guidance and the May 2025 attestation form are posted on the U.S. Trustee Program website.

Do I have to file a separate lawsuit to discharge student loans?

Yes. Listing the loan in your bankruptcy schedules is not enough. Dischargeability must be decided in an adversary proceeding, which is a separate lawsuit filed within the bankruptcy case naming the loan holder as defendant. Without it, the loan survives the discharge.

Are private student loans easier to discharge?

Sometimes. Section 523(a)(8) protects only loans that fit one of its three categories. Education-related debt that falls outside all three, such as borrowing not incurred solely for qualified higher education expenses, amounts beyond the school's cost of attendance, or loans tied to a school that is not an eligible educational institution, is ordinary unsecured debt and can be discharged without proving undue hardship.

Can student loans be discharged in bankruptcy?

Yes — but only through a separate court case called an adversary proceeding, where you must prove that repaying the loans would cause undue hardship. Florida sits in the Eleventh Circuit, which applies the three-part Brunner test. Since November 2022 a Justice Department attestation process has made federal student loan discharge far more attainable.

Why Student Loans Are Treated Differently

Most unsecured debt — credit cards, medical bills, personal loans — simply disappears when you receive a bankruptcy discharge. Student loans do not. Section 523(a)(8) of the Bankruptcy Code carves them out and keeps them alive after the case ends unless the court finds that excepting them from discharge would impose an undue hardship on you and your dependents.

The carve-out covers three things: loans made, insured, or guaranteed by a government unit, or made under any program funded in whole or in part by a government unit or a nonprofit; an obligation to repay funds received as an educational benefit, scholarship, or stipend; and any other “qualified education loan” as that term is defined in section 221(d)(1) of the Internal Revenue Code. Nearly every federal loan and most private student loans fall into one of those three buckets.

The Undue Hardship Standard Florida Courts Apply

Congress never defined undue hardship, so the courts did. Florida is in the Eleventh Circuit, which adopted the Brunner test in Hemar Insurance Corp. of America v. Cox (In re Cox), 338 F.3d 1238 (11th Cir. 2003). You have to prove all three parts:

Present inability. Based on your current income and expenses, you cannot maintain a minimal standard of living for yourself and your dependents if you have to repay the loans.
Likely to persist. Additional circumstances make it likely that this state of affairs will continue for a significant portion of the repayment period.
Good faith. You made good-faith efforts to repay the loans before asking the court to wipe them out.

Failing any one prong sinks the request, which is why the standard earned its reputation as nearly impossible. What changed is not the test — it is how the government decides whether to fight you on it.

You Have to File an Adversary Proceeding

A student loan is not discharged just because you filed bankruptcy and listed it. Dischargeability has to be decided by the court in an adversary proceeding — a separate lawsuit filed inside your bankruptcy case, with its own complaint, its own docket, and the loan holder as the defendant. Skip that step and the loan survives your discharge no matter how bad your finances are.

The adversary proceeding can be filed in a Chapter 7 or a Chapter 13 case, and the court can grant a partial discharge — wiping out some of the balance, or the interest, rather than all of it — if full relief is not warranted.

The Justice Department Attestation Process

On November 17, 2022 the Justice Department, working with the Department of Education, issued guidance telling its attorneys how to evaluate these cases. Instead of contesting every request, the government asks the borrower to complete a sworn attestation form detailing income, expenses, assets, future prospects, and past repayment efforts. A Department attorney reviews it against the same three questions Brunner asks, and where the facts support it, recommends to the court that the loans be discharged in full or in part.

The guidance is still in force. The U.S. Trustee Program’s Student Loan Guidance page, updated March 17, 2026, still hosts the 2022 guidance along with the current attestation form, dated May 2025.

In a July 17, 2024 announcement, the Justice Department and the Department of Education reported that 1,220 of these cases were filed from November 2022 through March 2024, that 98 percent of the cases decided by courts in that window ended in a full or partial discharge, and that 96 percent of borrowers with filed cases were using the streamlined attestation process.

Those numbers describe borrowers who got as far as filing an adversary proceeding, so they are not a prediction about any individual case. But they do puncture the old assumption that student loans can never be discharged. If your situation is genuinely hopeless — a disability, a long stretch of low earnings, an age at which retirement is near — it is worth having a lawyer evaluate the claim rather than assuming the answer is no.

Some Education Debt Is Not Protected at All

Section 523(a)(8) only shields debt that fits one of its three categories. Debt that falls outside all three is ordinary unsecured debt, dischargeable in the normal course with no adversary proceeding and no undue hardship showing. Examples that come up in practice include borrowing that was not incurred solely to pay qualified higher education expenses, loans tied to a school that is not an eligible educational institution, and amounts advanced beyond the school’s cost of attendance.

Private lenders do not always classify their own products correctly, so the loan paperwork is worth a careful read before anyone concludes the debt is untouchable.

Filing in Miami-Dade County

A Miami-Dade bankruptcy is filed in the U.S. Bankruptcy Court for the Southern District of Florida, and that is where the adversary proceeding over your student loans would be heard. Federal loans are defended by the U.S. Attorney’s Office for the district where the bankruptcy is pending, so a Miami case is handled by the Southern District of Florida’s office rather than by your servicer’s collection lawyers.

That matters practically: the attestation form goes to a federal attorney who is applying published national guidance, not to a debt collector. If you are searching for a bankruptcy attorney near me to look at student loan debt, bring your full loan list — federal and private, with the original promissory notes if you have them — because which statute applies to each loan decides the entire strategy.

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