Does My Spouse Have to File Bankruptcy With Me?

A common question we receive concerns the situation where someone has been married for a short period of time and has separate debts that they need to handle. The questions is “Can I be married and file a bankruptcy on my own?”

The short answer is “Yes.” Every week we have people that are married file a separate bankruptcy for their debts. However, there are a few things that come into play.

Income And Property When One Spouse Files

First, for a married person filing alone, the Chapter 7 means-test forms generally require both spouses’ income information when they live in the same household and are not legally separated. Different rules apply if you are legally separated or live apart for reasons other than evading the means-test requirements.

The calculation excludes certain types of income and may allow an adjustment for a non-filing spouse’s income not regularly used for the household expenses of the debtor or dependents. Gross household income is not the same as disposable income, and the means test is not the only eligibility consideration. Review the applicable forms and your circumstances with your attorney. Sources: 11 U.S.C. § 707(b); Official Form 122A-1, lines 1–10; Official Form 122A-2, lines 1–4 and 38–39.

Second, you must disclose your own property interests, including separate property and community-property interests, and provide the information about your spouse and household required by the bankruptcy forms. Qualifying community property can become part of the bankruptcy estate even when only one spouse files. Joint accounts do not by themselves require both spouses to file, but ownership, exemptions and the effect on each spouse should be reviewed before choosing an individual or joint case. Sources: 11 U.S.C. § 541(a)(1)–(2); 11 U.S.C. § 302; Official Form 106A/B; U.S. Courts Chapter 7 basics.

Joint Debts And Credit Questions

If you are jointly liable, your spouse’s bankruptcy does not automatically discharge your personal liability. But that does not mean creditors may collect from any source without restriction. The automatic stay generally protects the filing debtor and property of the bankruptcy estate. A discharge can also protect certain community property acquired after the case begins from collection of allowable prepetition community claims, subject to statutory exceptions.

In Chapter 13, a co-debtor stay may temporarily protect a non-filing individual from collection of qualifying consumer debts, subject to exceptions and court-ordered relief. Ask your attorney to review the debt, bankruptcy chapter and property involved before deciding what collection activity is allowed. Sources: 11 U.S.C. § 362(a)–(b); 11 U.S.C. § 524(a)(3), (b), (e); 11 U.S.C. § 1301.

Joint credit accounts can affect both spouses’ credit scores, so do not rely on a guarantee that continuing payments will leave your credit unchanged. Review your credit reports and joint debts with your attorney. If keeping up with payments becomes difficult, seek advice about your options; your spouse’s filing does not by itself require you to file bankruptcy. Sources: CFPB on joint accounts and credit scores; 11 U.S.C. § 301; 11 U.S.C. § 302.

In general, if you are filing an individual bankruptcy in an attempt to emerge from bankruptcy with a set of credit scores unscathed, you will only succeed if the accounts are individual accounts. If any debt is shared debt, you are going to have to pay it anyway. A bankruptcy attorney can tell you how to protect an non-filing spouse in the event of a spouse’s filing.

Here is the good news…It is free to meet with bankruptcy attorney Christopher A. Benson to find out your options and your benefits. So, it is definitely worth it to take the time to find out how to take control of your financial situation.

Over the past 34 years, the Law Offices of Christopher A. Benson has helped over 2,300 of Washington clients take control of their financial situation. We can review whether bankruptcy may help stop your garnishment and address your debts through a repayment plan. Sources: 11 U.S.C. § 362(a)–(d); U.S. Courts: Chapter 13 bankruptcy. If money has already been garnished, recovery may be possible in some cases, depending on the timing of the transfers, applicable exemptions and other legal requirements. A refund is not automatic or guaranteed. Sources: 11 U.S.C. § 547(b)–(c), (e)–(g); 11 U.S.C. § 522(g)–(i); 11 U.S.C. § 550(a). But you have to act quickly–call (253) 815-6940 for your free consultation, or email us today. Evening and weekend appointments available.