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Does My spouse Have to File Bankruptcy with Me?

Norma Duenas

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Asset Protection

does my spouse have to file bankruptcyOnce of the biggest concerns for married couples is:

Does my spouse have to file bankruptcy with me?

Do we have to file bankruptcy together?

The answer is: No there is no requirement that married couples file bankruptcy together. Your wife or husband can file bankruptcy individually.

Whether it is advisable that you together will depend on whether both spouses have debts that they are jointly liable for and whether it would be in their best interest financially and in the future to eliminate the personal liability for all of these debts. If only one spouse owes debts and the other spouse has no personal liability for the debts then there is no need to file a joint bankruptcy case.

Community Discharge– In cases where one spouse files for bankruptcy, the debts of the non-filing spouse should be listed. This protects the after acquired community assets and property from being subject to claims from the the non-filing spouses creditors. This is referred to as a community discharge since it protects the after acquired community assets from being seized, garnished or attached where the community claim was discharged in bankruptcy.

There are some important facts that you should be aware of when you are filing for bankruptcy and are married.

1) Listing all of your community property-If you are married and live in a community property state such as California, then you will have to list all of your community property in the bankruptcy case.  Regardless of whether one spouse is filing on their own, all of the community property of the married couple must be listed in the bankruptcy and becomes part of the bankruptcy estate.  Your attorney will not only ask you about your property, but also your non-filing spouse’s property. Of course if the property is separate property (property owned prior to marriage), then it is not part of the bankruptcy estate.

2) Listing all of the income contributed to household– Even though your spouse is not filing for bankruptcy, you are still required to list any income that they regularly contribute to the household. When determining your disposable income, the non-filing spouses income is included if it is regularly contributed for household expenses of debtor and dependents.  Income that is not regularly contributed should not be included in calculating your disposable income. There is some dispute as to what expenses (clothes, entertainment, vacations, etc.) can be deducted as not being contributed to the household by the non-filing spouse.

It is always important that you obtain the legal advice of an experienced bankruptcy lawyer to determine if filing individually or jointly is in your best interest.

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