Can I file a bankruptcy without my spouse?

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The short answer is, yes. If one spouse is carrying debt or the majority of the debt, that spouse may be desirous of filing a Chapter 7 or Chapter 13 Bankruptcy. A Bankruptcy filing is associated with a social security number and although only the filing party’s social security number will be listed and associated with the filing, there is other information that is gathered from the non-filing spouse.

Bankruptcy involves household income and household expenses. In most cases, for bankruptcy purposes, if a married couple resides together; both of their incomes and expenses would be taken into consideration to determine what chapter of Bankruptcy would be best, even though only one party is filing.

Another common question relating to one spouse filing bankruptcy is whether the non-filing spouse’s assets, such as their car or real estate is protected. Any assets that are solely the assets of the non-filing spouse are not part of the bankruptcy estate and therefore are not made part of the Bankruptcy proceedings. Accordingly, the non-filing spouse’s assets are deemed to be outside of the bankruptcy proceedings.

If the asset(s) are owned jointly, a bankruptcy attorney will value the asset(s) and determine the filing party’s equity interest in the subject property. If the share of the asset(s) are greater than the protections allowed by law, the asset is not forgiven, rather the debt would be repaid through a Chapter 13 payment plan over 3-5 years.

Lastly, if an asset is subject to a bankruptcy proceeding, such as real estate heading towards foreclosure, if the real estate is owned by both spouse’s one spouse may file a bankruptcy and the non-filing party would enjoy all of the protections of bankruptcy due to the co-debtor stay. The co-debtor saty is a powerful tool found in bankruptcy and is codified in 11 USC Section 1301(a) Stay of Action Against Codebtor and reads in relevant part:

A creditor may not act, or commence or continue any civil action, to collect all or any part of a consumer debt of the debtor from any individual that is liable on such debt with the debtor.

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