Bankruptcy when married filing individually

Can I file bankruptcy without my spouse?

If you are married you can file bankruptcy with or without your spouse.  Filing bankruptcy without your spouse depends on your assets and your income if it is better for you to file with your spouse or individually. If you are married filing individually, your spouse does not have to attend the 341 creditors meeting with you. The trustee could potentially ask for documents from your non-filing spouse. When one spouse has incurred debt in his or her name only, he or she can file for bankruptcy without requiring their spouse to do so as well. However, in filing for bankruptcy, salary and other asset information of the non-filing spouse is required to be disclosed, in order to determine if the filing spouse qualifies for Chapter 7 bankruptcy or Chapter 13 bankruptcy. Additionally, while a non-filing spouse is not liable for a filing spouse’s debt, if joint property is owned between them, the property may be not be immune to actions on the part of creditors.

While only one spouse may be filing for bankruptcy, the court will consider household income in order to determine if the filing spouse is eligible to file for Chapter 7 bankruptcy under the means test. In cases where a filing spouse has little disposable income but a non-filing spouse earns substantially more, the income of both will be reported on bankruptcy forms. If the household income is more than the qualifying median income required for filing Chapter 7 bankruptcy, the filing spouse may have to file under Chapter 13 bankruptcy. In either case, the court will consider what your current monthly income is by deducting expenses your spouse pays that are not related to monthly household costs. After determining your current monthly income, the court will then determine you disposable income.

If the household income of a filing spouse disqualifies him or her for Chapter 7 bankruptcy, he or she may still be able to file under Chapter 13 bankruptcy. Under Chapter 13 bankruptcy, a trustee is appointed by the court in order to administer the repayment of debt according to a plan agreed to by the filing spouse’s creditors. While the non-filing spouse will not be involved in the Chapter 13 bankruptcy repayment plan, his or her income will be considered when determining the repayment schedule.

Always speak with an experienced bankruptcy attorney to make the best bankruptcy choice for you.

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