The attestation is the center of every federal student loan discharge case I file. It is the document the government uses to decide whether to agree that your loans should be discharged, and it is where most cases are won or weakened. This is where we tell your story and allow the US Attorney and Department of Education to gain a better understanding of why the loans are creating a hardship.
Here is what it asks, section by section, and how the answers are evaluated. If you want the bigger picture first, start with whether federal student loans can be discharged in bankruptcy.
What is the student loan attestation?
It is a standardized form, created by the Department of Justice with the Department of Education, that a borrower uses to ask the government to stipulate that repaying federal student loans would be an undue hardship. It came out of the Department of Justice's Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation, issued November 17, 2022.
Undue hardship is the standard in 11 U.S.C. § 523(a)(8). The guidance does not change that standard. It tells government lawyers how to evaluate it consistently, and the attestation is the vehicle for the facts. The version in use while I write this is dated May 2025, when the Department of Justice updated the expense figures.
Timing matters. The attestation comes after the adversary proceeding is filed, meaning after the lawsuit inside your bankruptcy case against the Department of Education exists. It is sent to the Assistant United States Attorney, often called the AUSA, assigned to that lawsuit. In Colorado, that is a lawyer in the United States Attorney's Office for the District of Colorado. It is not filed with the bankruptcy court unless the court or counsel asks for it.
What sections does the attestation have?
Five, and each one maps to a question the government has to answer.
| Section | What it asks | What it is used for |
|---|---|---|
| Personal information | Household members, dependents, education, employment, the loans at issue, balances and monthly payment | Establishes who is in the household and which loans are before the court |
| Current income and expenses | Gross household income from every source, and monthly expenses by category | Brunner's first question: can you pay now |
| Future inability to repay | Age, disability, employment history, degree completion, how long the loans have been in repayment, and other circumstances | Brunner's second question: is it likely to persist |
| Prior efforts to repay | Payments made, deferments and forbearances, consolidation, contact with servicers, income driven repayment enrollment or the reasons you did not enroll | Brunner's third question: good faith |
| Current assets | Real estate, vehicles, accounts, retirement assets and other property | Whether assets change the picture of your ability to pay |
How are income and expenses evaluated?
Your household income is compared with allowable expenses built on the IRS Collection Financial Standards, which are the same figures the Internal Revenue Service uses when it decides what a taxpayer can afford to pay on a tax debt. If your allowable expenses equal or exceed your income, the guidance says you lack a present ability to pay.
The IRS standards come in two groups. National Standards cover food, housekeeping supplies, apparel, personal care, and miscellaneous costs, plus out-of-pocket health care. Local Standards cover housing, utilities, and transportation, and they vary by county and household size. The attestation also accounts for other necessary expenses, such as taxes, health insurance, childcare, and court-ordered payments.
For the attestation, income means household income. A spouse or partner's contribution to the household belongs on the form. Additionally, the standards are not a ceiling you are punished for exceeding. The guidance allows expenses above the standards when they are reasonable and necessary, and the form gives you room to explain why. A medical cost, a dependent's needs, or a commute you cannot avoid are the kinds of facts that belong in that explanation.
If income is higher than allowable expenses, the government compares the difference with the monthly payment the loans would require under a standard repayment plan, calculated with the Department of Education. If what is left over is not enough for that payment, the guidance directs government counsel to consider a partial discharge.
What are the presumptions of future inability to pay?
They are facts that, under the guidance, lead government counsel to presume your present inability to pay is likely to persist. You only need one. They are rebuttable, which means the government can decline to apply one if the rest of the attestation shows a realistic likelihood of future ability to pay, but the guidance expects that to rest on concrete facts rather than speculation.
| Presumption | Notes |
|---|---|
| You are 65 or older | Measured by your age, not the age of the loans. |
| You have a disability or chronic injury that affects your ability to earn income | The guidance does not require a formal medical opinion, though documentation helps. |
| You have been unemployed for at least five of the last ten years | Periods out of the paid workforce, including caregiving, belong in this answer. |
| You did not complete the degree the loans paid for | Common for borrowers who left a program partway through and are still carrying the full debt. |
| The loans have been in repayment status for at least ten years | Time you were enrolled in school does not count toward the ten years. |
If none of these apply, that does not end the analysis. The form asks about other circumstances that make improvement unlikely, and the Tenth Circuit's reading of Brunner in Educational Credit Management Corp. v. Polleys, 356 F.3d 1302 (2004), asks for a realistic look at your prospects rather than a certainty of hopelessness. A field that has not paid what the degree assumed, a long employment history at the same modest income, or responsibility for a dependent adult can all be part of that picture.
What counts as good faith?
Much more than a perfect payment record. The guidance treats any of these as evidence of good faith: making a payment, applying for a deferment or forbearance, applying for an income driven repayment plan, applying for a federal consolidation loan, or contacting or responding to your servicer about repayment options. The guidance also looks at efforts to find work, maximize income and keep expenses down.
If you never enrolled in income driven repayment, you are not alone, and there is no reason to feel embarrassed about it. The form asks why, and the guidance tells government counsel to accept reasonable explanations. Being told by a servicer that you did not qualify, being steered into forbearance instead, not knowing the plans existed, or a calculated payment you still could not afford are all examples of the kind of answer the process is built to hear. The guidance also does not count the pandemic payment pause against you. Past missed payments do not disqualify you by themselves if other evidence of good faith exists.
The federal repayment plans have been changing, and the options you were offered depended on when you asked. The attestation asks about your history as it actually happened, not about plans that exist today.
What happens after the attestation is submitted?
Government counsel reviews it, works with the Department of Education, and decides what to recommend. The general sequence looks like this:
- Submission. I send the signed attestation and supporting documents to the AUSA assigned to the adversary proceeding.
- Review. The AUSA evaluates the attestation using the guidance and consults the Department of Education, which supplies loan records and the standard payment figure.
- Questions. The AUSA may ask for more documents or an explanation of a particular number. A prompt, complete answer keeps the case moving.
- Recommendation. Government counsel decides whether to recommend a full discharge, a partial discharge, or neither.
- Stipulation. If there is agreement, the parties submit a stipulation of facts and a proposed judgment to the bankruptcy judge.
- Judgment. The judge decides whether to enter it. The recommendation is not the judgment, although judges generally give it significant weight. In Colorado, our judges have generally accepted the stipulation and entered the order.
If the government does not agree to a full discharge, there are still options. Sometimes a disagreement about one number is resolved by documentation. Sometimes it is resolved by a partial agreement. Every case turns on its facts.
What are the most common mistakes on the attestation?
Most problems come from inconsistency, not dishonesty. The ones I see most:
- Leaving out household income. A partner's income or regular help from a family member belongs on the form.
- Numbers that do not match the bankruptcy schedules. Government counsel reads your Schedules I and J next to the attestation. Differences need an explanation.
- Estimating expenses instead of documenting them. A guess that turns out high invites questions about the rest of the form.
- Claiming above standard expenses without explaining them. The explanation is where the allowance is earned.
- Misremembering the loan history. The ten year presumption and the good faith section depend on your actual loan record, not on memory.
- Listing loans the process does not cover. Commercially held loans and private loans are handled differently, and they should be identified before the attestation is drafted.
- Treating the assets section as an afterthought. Retirement accounts, equity and savings all appear here and are part of the evaluation.
- Failing to update the form when something changes. A new job, a raise, or a job loss before resolution should be disclosed.
Every one of these is avoidable. The fix for most of them starts with the same document: your federal loan record, downloaded as the My Aid Data file from studentaid.gov, read next to your tax returns, pay stubs and bankruptcy schedules. If you are also deciding which chapter makes sense, the Colorado means test and Chapter 13 for higher income households are useful reading.
The next step
I prepare every attestation with my clients line by line, because careful preparation is what makes a strong case a clean one, and because no one should have to face this form alone. If you would like to know how your numbers and loan history would look on this form, in a Strategy Session I read them with you and tell you honestly what I see. You can read more about my student loan discharge practice, or reach out whenever you are ready. I would be glad to help.
