Published on:

If I File For Bankruptcy, Does My Spouse Have to File With Me?

No, it is necessary that your spouse file a joint bankruptcy with you. And in fact, it may sometimes be more beneficial to file solely based on the situation at hand and the types of debts that exist.

First, let me start by describing when a joint bankruptcy (either Chapter 7 or Chapter 13) between you and your spouse may be best. The most common situation would be when a husband and wife own most of their debts jointly. For instance, if the credit cards, personal loans, mortgage, car notes, and business debt are in both of your names (and therefore you are both jointly liable for the underlying debts), then it is probably advisable to file the bankruptcy jointly. You can still file an individual petition, in which case all the debts would be discharged that run to you, but your spouse would still be on the hook for all the money that is owed. In this scenario, even though you have gotten out from underneath the debts, it is still going to end being a problem since the creditors will simply go after your spouse. But if you both file, the debts are discharged jointly so that the creditors cannot come after either one of you.

But sometimes, it is preferable to file a bankruptcy individually without your spouse. Many examples come to mind, so let me describe a couple. The most obvious example would be a case where you are the only one who has amassed the debt, it is all in your name solely, your spouse has little or no unsecured debt, and your secured assets are separately owned (you have a car in your name, he/she has a car in his/her name). In this scenario, it would probably make more sense for you to file a St. Louis Chapter 7 or St. Louis Chapter 13 individually. This would also ensure that at least one member of the household will not have the bankruptcy filing show up on their credit report (which may be advantageous in the short-term while the filing spouse gets back on their feet financially).

Another example would involve a situation in which one of the spouses is not currently eligible for a discharge in a bankruptcy. The bankruptcy code states that an individual may not file two Chapter 7s within an eight (8) year period. So if your wife filed a Chapter 7 in May 2010, she is not eligible to file another Chapter 7 until May 2018. But if your debts have reached an unsustainable point, such that making even minimum payments is unfeasible, then you still might want to file an individual bankruptcy even though your wife cannot.

As you can see, the question of whether or not to file with your spouse is very fact specific. If you have questions or concerns related to this issue, please contact the St. Louis bankruptcy lawyers at Brinkman & Alter, LLC. Our staff is eager to help you, and all phone and office consultations are free of charge.

Contact Information