Daily Archives: August 3, 2010

Does My Spouse Have To File Bankruptcy If I File?

Bankruptcy clients ask me all the time:

“My husband/wife does not want to file, what if I do, does he/she have to ?”

Nope.

The bankruptcy code does provide for involuntary bankruptcy, but that is a complicated process in which creditors get together to throw a person or corporation into bankruptcy court so they can get supervision over the assets of the person or corporation.

Any one person filing does not obligate or require another person to file.

You can file chapter 7 bankruptcy and leave your husband out of it.

Might be a bad idea, but, as we lawyers like to say, depends on the specific facts.

Your discharge only discharges your liability.

So, if you and your hubby both signed for the VISA, and you file, he still owes.

Nothing changed for him, his liability to VISA did not go up, it did not go down.

When you get your discharge, it is just like taking your name off joint debts.

His name stays on.

He is not more responsible for the debt, he was 100% liable before, and still is.

Now, in chapter 7 or chapter 13 bankruptcy, some of his information has to be disclosed.

He does not sign the papers, but the court looks at household income, so his income and expenses normally need to be on the budget forms, schedules I and J.

How much is disclosed where depends on some factors beyond the scope of this post, so , as always, check with experienced counsel.

So, you need to file Chapter 13 to save a house that is in both your names.

Do you both have to file Chapter 13 bankruptcy?

Nope.

Either one can file, and that will stop a foreclosure sale on the home.

Now, you will not get away with putting down only your income, and deducting all the household expenses from that in calculating your chapter 13 plan payment, without accounting for his income.

Let me back up the truck.

Your chapter 13 plan payment will basically be determined by deducting your living expenses from your take home income.

It is only fair, that if you both have income, and are living in the same house, that some of his income be allotted to the shared mortgage and other household expenses.

So, spouses do not have to file  joint bankruptcy petitions, but, the income and expenses of the non-filing spouse will likely have to be disclosed to the court.

Does My Spouse Have To File Bankruptcy If I File?

11 Responses to Does My Spouse Have To File Bankruptcy If I File?

  1. This has some great points and further illustrates why it’s so important for folks NOT to file without a bankruptcy attorney.

    I implore those of you who are thinking about filing on your own to rethink that decision, as you may make a costly mistake.

    Good luck to everyone!

    ep

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