What are a co-signer’s rights/responsibilities regarding a personal student loan through a bank and repayment?

The signer and co-signer are divorced. The signer filed bankrupcy after the divorce but the student loan was not forgiven. Now the signer is threatening the co-signer that they will take them to court to help pay the loan back in real time, even though the signer is and has been paying and has not defaulted. I am trying to find out what the rights are of the co-signer in this instance. Can a co-signer be made to pay at the same time as a signer or only if the loan is defaulted by the signer?

Asked on September 9, 2012 under Bankruptcy Law, New Jersey


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Generally, co-signers only get hooked by a note or loan when the primary signer defaults.  This is a general rule, but some factors can influence this rule.  The first is the loan agreement itself.  If it was worded differently than a general co-signer agreement and in reality put the co-signer on the hook up-front, then the other person could try to force the co-signer to comply with the agreement.  This is not common, but the first step is to review the loan agreement and make sure that what the co-signer agreed to is also what they thought they agreed to.

The second factor that could influence their respective offenses is the divorce decree.  If the court ordered one party to help another with a certain debt, including a student loan, the a signer could sue the co-signer to enforce the obligtion through the divorce court.

Absent some other set of odd factors, the co-signer should not have to pay the debt.  Keep in mind, however, the signer may decide to just default and accomplish what they want-- which is forcing payment by blackmail of the co-signer's credit history. 

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