Does My Spouse Have To File Bankruptcy With Me?

 

No, your spouse does not have to file bankruptcy with you. Whether you file individually or together will be a function of your income, assets, and debts. Our office will assist you with the decision-making process and weighing the pros and cons of a joint bankruptcy filing or an individual bankruptcy filing.

Let’s Talk Debts

If you and your spouse have separate debt, you may consider filing individually. When you file without your spouse, your debt is discharged, and your spouse’s debt survives the bankruptcy. If you have joint debt and one spouse files, the debt as to the filing spouse is discharged. However, it is important to note the non-filing spouse will still owe the entire balance on the debt. For this reason, may married couples choose to file a joint bankruptcy.

Does Income Matter?

Income plays a role in whether you have the option to file a joint Chapter 7, and income plays a role in the calculation of your monthly payment in a Chapter 13 bankruptcy filing. When both spouses file, all household income is included in the monthly budget. This affects your Means Test in Chapter 7, and your disposable income in Chapter 13. It is worth noting that all household expenses are also included in those calculations. The goal is to give the court an accurate picture of the household financial situation.

When considering whether one spouse should or should not file, income may play a strategic role. Even if one spouse is not filing, both spousal incomes must be included in the income column of the bankruptcy filing. However, any income the non-filing spouse spends on herself (i.e., does not contribute to the ‘household expenses’) can be deducted from this total. For example, if one spouse makes $7,000.00 per month, but gives $1,000.00 a month to help her parents, and contributes another $700.00 per month to a 401k plan, those items are subtracted out from the income totals. Once our office runs hypothetical calculations under both scenarios, the difference often helps dictate the filing strategy.

Ownership Of Assets

The rules of bankruptcy are unique. They do not always make sense, but they are generally predictable. Our firm is familiar with the court’s treatment of asset ownership in both Chapter 7 and Chapter 13. We will ask you who currently owns each family asset, and whether those assets have been transferred recently. Quite often, we drive a vehicle believing it to be “our” vehicle, even though it may be titled in our spouse’s name. The same may be true of a home owned by a married couple. Determining who is on the deed to the property is of utmost importance in applying the bankruptcy asset rules to your case.

Many assets in a household are not titled. Generally, ownership of household assets is assumed to be owned 50/50 between spouses. However, if a large item was given as a gift, we may be able to categorize that item as yours or your spouse’s, depending upon the specifics.

Do not Worry, Call A Lawyer

The good news is your bankruptcy lawyer addresses all of these potential hurdles for you, and in doing so provides for a smooth bankruptcy filing. Call us to speak with a lawyer today. We can be reached at 704.749.7747 or you can simply click HERE to request a call. For further reading, this ABI article on non-filing spouses may be helpful.