The Brunner test comes from the 1987 case Brunner v. New York State Higher Education Services Corp. and remains the dominant standard in most federal circuits.
The Three Prongs
Prong 1: Current Inability to Pay
You must demonstrate that based on your current income and expenses, you cannot maintain a minimal standard of living for yourself and your dependents while repaying the student loans. "Minimal standard of living" does not mean poverty -- courts have recognized that basic necessities include housing, food, utilities, transportation, and healthcare.
Prong 2: Persistence of Hardship
You must show that additional circumstances exist indicating your financial situation is likely to persist for a significant portion of the remaining repayment period. This is often demonstrated through age, disability, chronic health conditions, limited education or skills, or a depressed job market in your field.
Prong 3: Good Faith Effort
You must show that you have made good faith efforts to repay the loans. This does not require perfect payment history. Enrolling in income-driven repayment plans, making some payments, communicating with servicers, and exploring repayment options all demonstrate good faith.
Criticism and Reform
The Brunner test has been widely criticized as too rigid. Some courts have moved to a more flexible "totality of the circumstances" approach. The 2023 DOJ guidance has also softened enforcement. The legal landscape is shifting in borrowers' favor, and more attorneys are willing to take these cases than ever before.