Can I file bankruptcy without my husband/wife?

By Kenneth Lenz, Board Certified Consumer Bankruptcy Attorney
Ask a bankruptcy lawyer what this means to you and your non-filing spouse

Can I file bankruptcy without my husband/wife?

By Attorney Kenneth Lenz

People frequently ask whether they can file a bankruptcy case without their spouse.

While the simple answer is yes, this may be deceiving.  The complicated answer is that your spouse matters for several reasons.

Let’s assume that you and your spouse are married and living together.  Then you have one household. There are at least two of you and maybe more in your household.  If that’s the case, your spouse’s earnings count and must be considered to determine if you are eligible to file a chapter 7 case – straight liquidation – or whether you must file a chapter 13 debt adjustment case – along with payments to creditors for up to 5 years.

A married person must disclose his or her spouse’s income in the bankruptcy filing.  Of course, the spouse’s separate expenses, like personal credit card bills, are deducted, but anything left over is considered disposable income which is placed to  household uses and therefore available, at least in theory, to pay the filing spouse’s debts.  If the non-filing spouse makes enough money, then the filing spouse may be required to file a chapter 13 case or run the risk of having his or her chapter7case be subject to a motion to dismiss as abusive.

If you are married and living separately, you probably won’t have to include your non-filing spouse’s income.  Each of you now has your own household.  If you are married but estranged, you may be deemed to have separate households even if you live in the same dwelling.

The decision must also take into account whether the spouse is a co-signer or guarantor on any of the obligations of the filing spouse.  This is because the discharge only effects the filing spouse’s obligation, so after discharge the non-filing spouse is solely liable for formerly joint debts. 

So if you are married but are thinking of filing bankruptcy separately, ask a bankruptcy lawyer who understands marital law what this means to you and your non-filing spouse.