Can I File For Bankruptcy Without My Spouse
Posted on October 22, 2021 inBankruptcy, Debtor and Creditor
Are you ready to file for bankruptcy, but your spouse is against the idea? You are not alone. Bankruptcy can be a scary endeavor, especially if you or your spouse have misconceptions about the process and results. Heres what you need to know:
Why Should You File Together?
When a couple files together, they can both benefit from the fresh start as one. It also will reduce future complications with your shared debt and assets.
What Happens If My Spouse Is Unwilling to File With Me?
Whether your spouse has previously filed and is unable to file again yet or they just do not want to file, you are able to file on your own. However, your spouse will still need to provide the following:
You and your spouse should carefully consider all possibilities when filing for bankruptcy. Speak with your attorney together to make sure that both of your financial situations are protected.
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Can I Hide A Bankruptcy From My Husband Or Wife
Not likely. You cant hide a bankruptcy from your spouse when you own assets with him or her or have joint debt. Your partner will receive some sort of notification during bankruptcy court proceedings.
Even if you dont share property or debt with your spouse, its still a bad idea to keep something so life-changing a secret. The bonds of matrimony extend to financial concerns.
Spouses deserve to know the truth about your money issues because it will eventually affect them. They will almost certainly find out at some point and the reaction to a revealed secret is often much worse than the reaction if they had been told the truth up front.
Does My Spousal Income Count Towards The Bankruptcy If He Or She Does Not File With Me
While filing for individual bankruptcy, it is important to note that spousal income counts even if he or she is not part of the petition. Income generated by a spouse dictates the type of bankruptcy one gets to file.
One can only qualify for an individual bankruptcy filing if their spousal income is below a certain amount under Chapter 7. For Chapter 13 filing, a spouses income must be above a certain income level. It is common for a bankruptcy attorney to ask for income generated by each spouse. You will find that both incomes are used to evaluate eligibility as it pertains to the individual filing.
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What About Joint Debt
Debt is a little more complicated when filing for bankruptcy separately. If one spouse files independently, their individual accounts, as well as their joint accounts, are dischargeable. The filing spouses separate property and jointly-owned property and accounts are off limits to collectors once the debt is discharged. However, the non-filing spouses separate property is not dischargeable, and could be seized.
The Best Way To File For Your Family
Theres no one-size-fits-all answer to Should I file individually or with my spouse? and there is no quick and easy response to How will my bankruptcy impact my spouse? The best approach for you and your spouse will depend on the specifics of your financial situation, including how much of your debt is shared and whether you have joint assets that would not be exempt. If possible, it is best for both parties to participate in the initial consultation. In one instance, the husband sat in the car because he was determined that he was not going to file. After the wife called him and explained that it would be best for them to file a joint case, he came into the office and decided to move forward immediately!
The first step toward finding the right solution for you is to talk with an experienced bankruptcy lawyer. Bond & Botes offers free consultations to help people like you get the information they need to improve their financial lives. You can schedule your appointment right now by calling or filling out the contact form on this page.
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Can One Spouse File Bankruptcy
Does a married couple have to file bankruptcy together, or can just one spouse file bankruptcy? Whether due to wanting to protect a loved one from stress and anxiety, embarrassment from bankruptcy when married, or financial strategizing, there a host of reasons why a spouse may wish to file bankruptcy independently of their husband or wife.
We discuss the possibilities and best courses of action for claiming bankruptcy when married and answer if you can file bankruptcy separately from your spouse, in the following article. Reach out to our Houston bankruptcy lawyers today for more guidance on your specific case.
Are There Any Exceptions
While the bankruptcy of one spouse does not generally affect the other, there are some notable exceptions. For example, the bankruptcy of ones spouse may show up on the others credit report if joint debt is involved a contentious area of the law. Also, if applying for a joint loan in the future, the bankruptcy of one spouse will affect the creditworthiness of the applying couple.
Another exception has to do with jointly held property. In a normal bankruptcy, much of the debtors property is hauled away by creditors. If that property is jointly held, it can also be taken away.
This is of vital importance in community property states, states where both spouses in a marriage own and are responsible for all the debt and property acquired during the marriage. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
Any joint debts discharged by the bankruptcy of a single spouse also apply to the non-filing spouse. In other words, the non-filing spouse in community property states gets a partial advantage from her spouses bankruptcy. From that point on, creditors can only go after the non-filing spouses separate property such as that acquired before marriage, by gift during the marriage, or by inheritance.
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Can One Spouse File Bankruptcy Without Affecting The Other
Can one spouse file for bankruptcy? Married people filing for bankruptcy in Ohio have the option of filing with or without their spouse. There are advantages and disadvantages of both options, so deciding whether you should file for bankruptcy alone or together depends on your individual situation and needs.
If you do file individually, it must be done in good faith. The bankruptcy court will examine your circumstances, and if it determines that filing on your own was not done in good faith, it may dismiss the case without discharging your debts. If you dont file properly, even the non-filing spouse may be stuck with unexpected debts. To make sure everything is done correctly, you should consult an attorney who is experienced in Ohio bankruptcy laws and can help you decide whether you should file on your own or jointly.
Call Fesenmyer Cousino Weinzimmer today or contact us online so we can determine what debt relief solutions will work best for you.
Discuss Your Case With A Dedicated Alabama Bankruptcy Attorney
I am attorney Brent W. Davis. I have represented individual spouses and married couples in single and joint Chapter 7 and Chapter 13 filings across Alabama and the Birmingham area. I invite you to schedule a free, in-person consultation at my Birmingham office to discuss your debt relief options. My regular business hours are 7:30 a.m. to 6 p.m., Monday through Friday. Free parking is available. You can reach me by phone at 989-1919 . You can also contact me via e-mail.
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Most Common Questions
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What Happens When Just One Spouse Files For Bankruptcy
If there are any jointly held debts included in the bankruptcy petition and just one spouse files, the creditors can, and almost certainly will, come after the other spouse to collect the debt. Once you gain protection under the automatic stay, the creditors will be unable to come after you to collect the debt. If you and your spouse both signed for the home mortgage, a car, a boat or even a joint credit card, however, your spouse will be held responsible for those debts.
If all of the debts you included in your bankruptcy petition were under your name only, the creditors would not be able to seek repayment from your spouse. If you are considering bankruptcy and any of the debts you wish to include are held jointly between you and your spouse, it might be best to consider filing a joint bankruptcy petition.
Will The Bankruptcy Jeopardize Your Spouses Assets
In deciding whether to file bankruptcy alone or jointly, the assets in your spouses name are important to consider. Your spouses assets are critical because Chapter 7 bankruptcy involves liquidation of assets within the bankruptcy estate. These assets will be sold to settle debts with creditors.
The bankruptcy trustee administers the bankruptcy estate, which includes the property of whoever files. So, if you file bankruptcy alone, any property your spouse solely owns will not be included in the bankruptcy estate. In this way, your spouses assets can be kept from being sold to settle your debts.
If your spouse owns significant property they dont want to lose in bankruptcy, it makes sense to file alone. If you and your spouse dont have a lot of assets individually or jointly, it makes sense to file together.
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Advantages Of One Spouse Filing
I frequently recommend that only one spouse file bankruptcy. The reasons and advantages are many in a community property state like California.
All of the couples community property is protected from creditors, regardless of which spouse files the case. One advantage to filing alone is to preserve the others right to file bankruptcy later, should there be debts that arent dischargeable in the first case.
I think of the right to file bankruptcy as a valuable commodity which shouldnt be squandered when there might be a need for debt relief for the couple sooner than the Bankruptcy Code permits another filing.
I use single spouse filings to get couples below the Chapter 13 debt limits, or to protect an underwater home while the couple seeks a loan modification.
So whether your spouse is game to file or not, you can, and perhaps should, file bankruptcy alone.
Spouses With Separate Households
You do not need to include your spouses income in the bankruptcy filing if you and your partner maintain separate households. Some couples support separate households. Sometimes couples have jobs in different locations. Other times, a separate residence is needed to ease marital tensions. Whatever the reason, if your marriage or partnership includes separate households, you do not need to include your spouses income when filing.
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Will My Spouse Be Responsible For Joint Debts If I File An Individual Bankruptcy Case
In the case of joint debts, an individual bankruptcy filing does not protect your spouse from debt collections for joint debts. An individual bankruptcy filing only impacts your personal liability for the debt. Creditors cannot attempt to collect discharged debts from the debtor.
However, if your non-filing spouse is a co-debtor, the creditor can take all legal actions to collect the unpaid debt from your non-filing spouse. Actions include, but are not limited to, debt collection lawsuits, wage garnishments, repossessions, foreclosures, levies, and seizures. The creditor may need to wait until your bankruptcy case is closed, or it can petition the court to proceed with collections against your spouse for the joint debt.
It is important to read the credit agreement for each debt before filing bankruptcy. In some cases, your spouse could be responsible for a supplementary cardholder account. A supplementary cardholder has a credit card in his or her name with the same account number assigned to you as the primary account holder. This situation usually happens when a spouse applies for credit and answers yes when the company asks if the person wants a card for his or her spouse.
I Have A Lot Of Debt Should I File For Bankruptcy Now Or Wait Until I Get Married
Many clients find it desirable to start a new marriage with a clean bill of health from their debt. Marriage does not, by itself, create co-liability on existing loans, but it may make for more cohesive financial arrangements if both partners are entering into a marital relationship with balance on their debt obligations.
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The Bottom Line: You Are Responsible For Your Debts
The lesson to be learned from this post is simple: your debts are your debts only, and only you are responsible for them. This rule has big implications if youre preparing for bankruptcy because if you file without your spouse, your joint debt will become your spouses full responsibility.
In order to make the correct decision, make a list of the debts that are really holding you back. Are they primarily incurred in one spouses name? If so, it may be best for the heavily indebted spouse to file bankruptcy to preserve the others .
If, on the other hand, joint debts are your main problem, it will be necessary for both spouses to file in order to truly rid yourselves of debt.
Which Debts Are Wiped Out
Same as common law property states, only the spouse filing bankruptcy gets a discharge. The non-filing spouse is still liable for his or her separate debts and joint debts. However, the non-filing spouse receives an additional benefit in community property states.
All dischargeable community claims get discharged with respect to community property. This means that all community property, which is also owned by the non-filing spouse, is off limits to the discharged creditors . This benefit to the non-filing spouse is sometimes called a phantom discharge and it lasts as long as both spouses are alive and still married.
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You Can File For Bankruptcy Separately But Should You
Under North Carolinas bankruptcy law, married couples have the option of filing for bankruptcy jointly or separately. There are several benefits of filing a joint bankruptcy when you are married:
- Filing a joint bankruptcy case for both spouses would cost less than filing two separate cases
However, you also have the option of filing for bankruptcy separately without your spouse. When one spouse files a separate bankruptcy petition, only the petitioner spouse will benefit from an automatic stay to stop collection actions, and only their separate debt incurred in their name will be discharged. Meanwhile, the non-filing spouse could still be liable for any marital debt.
Filing separately may makes sense when only one spouse incurred debt alone, and there is no jointly-held debt. Otherwise, spouses usually go for a jointly-filed bankruptcy.
Will My Bankruptcy Affect My Spouse’s Credit
If you file for bankruptcy without your spouse, it will typically not affect your spouse’s credit. But if you have joint debts, the fact that you filed for bankruptcy to discharge the debt may appear on your spouse’s credit report. In addition, your creditors will receive notice of your bankruptcy and can usually still come after your spouse to collect any joint debts.
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Which Property Is Part Of Your Bankruptcy
In a common law property state, your separate property and your portion of any jointly owned properties become part of your bankruptcy. This means that if you do not have enough exemptions to cover these assets, then they can be taken and sold by the Chapter 7 bankruptcy trustee to pay your creditors.
Your spouse’s separate property and his or her share of joint property are not included in your bankruptcy. However, if you have nonexempt joint property, the trustee can still force the sale of the entire asset to get to your portion . Before doing this, the trustee must usually try to partition the property to sell only your share if possible. If it cannot be divided, the trustee must show that the benefit of selling the property outweighs the detriment to the co-owners.
Serving Harrisonburg Staunton Winchester And Nearby Areas Of Virginia
Posted: May 1, 2017
Filing for bankruptcy can be an effective way to find relief from crippling debt and get a fresh start financially. If you’re married, you’ll need to decide whether to file individually or jointly with your spouse. Both options are allowable under law, but the right choice for you will depend on your unique financial circumstances.
Like most states, Virginia is a common law property state. This means that any assets and property in your name alone and your portion of jointly owned assets will be subject to your bankruptcy case if you file alone. In this situation, your spouse’s separate property and share of jointly owned assets will not be part of the bankruptcy case.
Keep in mind that if you file bankruptcy without your spouse, it also means that only your debts are discharged as part of the case. If you and your spouse have jointly held debts such as a joint credit card account, car loan or a home mortgage, your spouse will now be responsible for the entire debt.
There are several factors to consider when deciding whether to include your spouse on the bankruptcy filing:
The attorneys at Hoover Penrod PLC have helped many individuals and couples in the Western District of Virginia with bankruptcy cases. We’ll review your unique financial circumstances with you in order to determine whether it’s better to file jointly or alone.
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