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If I am married, does my spouse have to file bankruptcy too?

On Behalf of | Jan 27, 2025 | Bankruptcy

No. A married couple does not have to file jointly just because they are married. One spouse can file, and the other one does not have to file (this person is the “non-filing” spouse). However, there are many factors to consider in the decision of whether to file a joint bankruptcy or not, including:

  1. Are there debts that are in both spouse’s names? If so, if one person files and the other doesn’t, then the non-filing spouse will be ultimately responsible for paying the debt.  If all the debts are just in one spouse’s name, then there will be little consequence to the non-filing spouse.
  2. If one spouse has a vehicle only in his/her name and there is a lot of equity in the vehicle (more than $7,000), then it may be wise for only the other spouse to file. The non-filing spouse who owns the vehicle with the equity will not be at risk of losing their vehicle (or having to “buy back” their interest in the vehicle from the Trustee).
  3. If both spouses have significant debts that they hold jointly, then it may be wise for them to file jointly so that they both get a fresh start. The cost for filing a joint petition is the same as for a single filer with my office (there may be other attorneys or law firms that charge extra for a joint filing). A couple filing jointly will only have to pay for one filing fee (to date, the filing fee for a Chapter 7 is $338).

Either way, both spouse’s income comes into play even if only one spouse files bankruptcy.

If the married couple resides in the same household, then the non-filing spouse’s income and expenses come into play. In other words, if the spouse who files for bankruptcy would qualify for a Chapter 7 based only on his or her income, he or she may be ineligible to file a Chapter 7 if the non-filing spouse’s income pushes them above the income limit.

However, there is no way to make this determination without computing a full 6-month analysis of both spouse’s previous income (including the amounts deducted for taxes and other qualified deductions).  There have been many, many times over the years that I have had other attorneys send me clients for a Chapter 13 bankruptcy because they believe that their clients qualify for a Chapter 7 bankruptcy based on the income limits. They may be “above-median debtors” on paper (this means that they earn more income than the median family income for their household), but I am able to get them back in a Chapter 7 after computing the means test analysis.