LUSKY & ASSOCIATES, P.C. is a Small Boutique Law Firm with a practice emphasis in Consumer & Business Bankruptcy Law and Debtor-Creditor Relations for over 30 years.

Can I File Bankruptcy Without My Spouse?

filing bankruptcy without my spouse

Married couples may file a joint bankruptcy but are able to file independently if they choose.  Although the choice to file with or without your spouse is ultimately the couple’s decision to make, a Dallas Texas Bankruptcy Attorneymay help explain the benefits of filing either a joint or separate bankruptcy.

Although the quick answer is easy, you can file bankruptcy without your spouse, certain implications must be examined before you decide which way to file.  In general, you will want to explore the benefits to filing without your spouse and any disadvantages the non-filing spouse may experience as a result of the bankruptcy.  In addition, each couple should compare these factors to the benefits and disadvantages of filing a joint bankruptcy.

Filing solo:  The filing spouse will have their liability for the debts discharged, leaving the non-filing spouse liable for any debts that were jointly owed.  This means the non-filing spouse would still be liable for any debts that were jointly owed.  A common example would be a joint credit card.  Some clients find it beneficial to file bankruptcy without their husband or wife when one spouse has a significant amount of debt for which they are solely liable.

Another benefit to filing individually may be to preserve the right of the non-filing spouse to file another bankruptcy at a later date.  In certain situations, a Chapter 13 bankruptcy is filed to stop a foreclosure.  If both spouses are on the loan, it may be possible to stop the foreclosure by only filing one spouse.  A bankruptcy attorney will be able to discuss the benefits of this situation with you in more detail.

It is important for couples to keep in mind that the non-filing party remains liable for their individual debt as well as any debt that was jointly owed.  Therefore, creditors will still be able to collect from the non-filing spouse for any joint debt that was discharged in their spouse’s bankruptcy proceeding.

Although you may make the decision to file without your spouse, their income may still be used in the means testcalculation to determine your monthly disposable income.  This may effect whether you qualify for a chapter 7 bankruptcy, or what your plan payments would be under a chapter 13.

Filing Jointly:  Certain couples may find it beneficial to file a joint bankruptcy.  For starters, the cost and fees are typically the same as filing individually.  In addition, both the husband and wife will be discharged from most unsecured debts.  Depending on which chapter is filed, secured debts must generally either be paid or reaffirmed if you intend to keep the property secured by the debt.   In general, a joint bankruptcy helps couples who have a significant amount of joint debt, or when each spouse owes a significant amount of individual debt.

Even if you are married, you can file bankruptcy on your own.  Depending on your situation, you may decide to file with or without your spouse.  Consult a bankruptcy attorney to discuss your options and make the best decision for your family.

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