The Brunner Test Explained
Understanding the Three-Part Standard for Student Loan Discharge
At The Independence Law Firm, we’ve successfully navigated hundreds of clients through the Brunner Test—the legal standard used in most courts to determine whether student loans can be discharged in bankruptcy. While this test has a reputation for being difficult, our expertise in presenting compelling cases has led to numerous full and partial discharges. Let us show you how the Brunner Test really works and why it might not be the barrier you think it is.
What Is the Brunner Test?
The Legal Foundation
Established in 1987 by Brunner v. New York State Higher Education Services Corp., this three-part test determines whether repaying student loans would impose an “undue hardship” on you and your dependents.
Where It Applies
- Most federal circuits use Brunner
- Including 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th, and 11th Circuits
- Different test in 1st and 8th Circuits
- We know every jurisdiction’s approach
The Three Prongs of Brunner: Breaking It Down
Prong 1: Poverty – Current Inability to Pay
The Legal Standard: You cannot maintain a “minimal” standard of living for yourself and dependents if forced to repay the loans.
What “Minimal” Really Means:
- Not bare subsistence level
- Basic middle-class necessities
- Safe housing in reasonable area
- Reliable transportation
- Adequate food and healthcare
- Basic communication (phone/internet)
How We Prove It:
Income Analysis
- Gross vs. net income
- Stability of income sources
- Overtime dependency
- Benefit limitations
Expense Documentation
- Detailed monthly budgets
- Necessary vs. discretionary
- Family size considerations
- Geographic cost factors
The Math That Matters
- Income minus necessary expenses = negative or minimal
- Loan payments would push below poverty
- No fat to trim from budget
- Already sacrificing basics
Prong 2: Persistence – Future Financial Hardship
The Legal Standard: Additional circumstances exist indicating your financial situation is likely to persist for a significant portion of the loan repayment period.
Qualifying Circumstances:
Medical/Disability Factors
- Chronic conditions limiting work
- Mental health impairments
- Progressive diseases
- Treatment requirements
- Functional limitations
Age Considerations
- Limited working years remaining
- Declining health with age
- Reduced employment opportunities
- Industry ageism realities
- Physical job limitations
Education/Career Limitations
- Degree didn’t yield expected income
- Industry collapse or automation
- Geographic limitations
- Obsolete skills
- Failed career transitions
Family Obligations
- Special needs dependents
- Elderly parent care
- Multi-generational responsibilities
- Medical costs for family
- Custody limitations on work
How We Build This Argument:
- Medical expert testimony
- Vocational evaluations
- Economic projections
- Statistical evidence
- Historical patterns
Prong 3: Good Faith – Past Repayment Efforts
The Legal Standard: You’ve made good faith efforts to repay the loans.
What Counts as Good Faith:
Payment History
- Any payments when able
- Even small amounts count
- Attempts matter more than success
- Prioritizing during better times
Program Participation
- Income-driven plan attempts
- Deferment/forbearance requests
- Consolidation efforts
- Communication with servicers
Life Choices Showing Responsibility
- Seeking employment diligently
- Living frugally
- Avoiding unnecessary debt
- Making sacrifices for payments
What DOESN’T Disqualify You:
- Never making payments due to poverty
- Strategic default decisions
- Not knowing all options
- Prioritizing family survival
Common Brunner Test Myths Debunked
Myth: “You Need to Be Disabled”
Reality: Many non-disabled debtors succeed
- Age alone can suffice
- Economic hardship qualifies
- Combination of factors works
- Disability just one path
Myth: “You Can Never Have Made Good Money”
Reality: Past income doesn’t disqualify
- Current situation matters most
- Changed circumstances considered
- Career failures acknowledged
- Life happens to everyone
Myth: “Perfect Payment History Required”
Reality: Good faith is flexible
- Attempts matter most
- Circumstances considered
- Communication counts
- Survival prioritized appropriately
How The Independence Law Firm Wins Brunner Cases
Our Three-Prong Strategy:
Prong 1: Poverty Documentation
- Comprehensive expense analysis
- Compare to federal standards
- Show already below minimal
- Prove loans tip balance
Prong 2: Persistence Evidence
- Multiple supporting factors
- Expert opinions when helpful
- Statistical projections
- Compelling life narrative
Prong 3: Good Faith Narrative
- Find every positive factor
- Context for any negatives
- Show responsibility pattern
- Demonstrate life struggles
Strategic Considerations for Your Case
Timing Matters
- Build evidence over time
- Document persistence factors
- Show good faith pattern
- File when strongest
Jurisdiction Nuances
- Some circuits more flexible
- Judge-specific interpretations
- Local precedents matter
- We know the differences
Partial Discharge Options
- Not all or nothing
- Brunner can support partial
- Creative settlements possible
- Meaningful relief achievable
Preparing Your Brunner Case
What We Need From You:
Financial Documentation
- Six months expenses
- All income sources
- Medical bills
- Family obligations
Medical/Disability Records
- Diagnoses
- Treatment plans
- Work limitations
- Prognoses
Employment History
- Job search efforts
- Termination documents
- Income progression
- Industry changes
Loan History
- Payment records
- Program participation
- Servicer communications
- Default dates
Why Brunner Isn’t the Barrier You Think
Recent Positive Trends:
- Courts interpreting more fairly
- 2022 guidance helps all cases
- Judges seeing more hardship
- Partial discharge acceptance
The Independence Law Firm Advantage:
- We know what judges want
- Present compelling narratives
- Find creative arguments
- Build winning coalitions
Your Brunner Test Evaluation
We’ll Assess:
- Current financial situation (Prong 1)
- Persistence factors (Prong 2)
- Good faith evidence (Prong 3)
- Overall discharge probability
- Partial discharge options
Common Strengths We Find:
- More good faith than realized
- Multiple persistence factors
- Expenses higher than thought
- Compelling life stories
Moving Forward with Brunner
The Brunner Test isn’t insurmountable—it’s a framework that, properly presented, can lead to your student loan freedom. At The Independence Law Firm, we’ve mastered the art of presenting compelling Brunner cases that resonate with judges and achieve discharge.
Don’t let fear of the Brunner Test prevent you from seeking the relief you deserve. Contact us today for an honest evaluation of how your circumstances measure up to the three-prong standard.
With the right legal team, Brunner can be your pathway to discharge, not your barrier to freedom.
