I Need to File Because I’m Getting Married

30 Jul I Need to File Because I’m Getting Married

MarriageBankruptcy lawyers hear from potential clients regularly that they need to file fast — because they’re getting married. They don’t want their new spouse to be held responsible for their old debt.

In most cases, the fear is misplaced. The marriage usually won’t make the new partner responsible for your past debt. Maybe you should file bankruptcy but it may not be an emergency either.

If your new spouse signs a loan with you any time, you are both on the hook. But that’s because you signed, not the marriage.

In many states, a spouse is responsible for the expenses of keeping the other spouse healthy. This is called the “necessaries doctrine.” It usually comes up when one can’t pay a medical bill and the hospital can try to collect from the other spouse. This doctrine would apply to debts after marriage though. (Of course whether the hospital or their lawyer looks carefully at when the marriage occurred and avoids improper collection from a new spouse is a different problem altogether.)

And some state may have special rules for some types of debt. For example, if you were living together prior to marriage in a rental property, even if only one of you signed the lease, the landlord might potentially be able to sue the non-signing tenant for part or all of the back rent because they received value by living there. This would be true of traditional roommates as well as couples, of course.

So there may be some types of debt you can be responsible for together, prior to marriage but normally it is because of some other reason or law, not because you “took on the debts” of your new husband or wife.

Also it should be noted — being married does not mean your spouse has to file bankruptcy with you. They can file a joint petition, but are not required to be “in” the case.

There may be other reasons to file a case before getting married of course. For example, only part of a boyfriend’s income may count for the means test if you file before marriage, while more or all of it might count afterward. It’s an unusual feature of the 2005 bankruptcy amendments passed by a fairly conservative Congress would encourage people to live in sin but this is just one of the many presumably-unintended consequences of that legislation.

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I have been a bankruptcy attorney since 1989. Our firm represents consumers filing bankruptcy almost exclusively, although I have represented bankruptcy trustees as well as creditors. For 2017-2019 I served on the American Bankruptcy Institute's Commission on Consumer Bankruptcy. Our Report recommended numerous changes to improve bankruptcy law to make it serve everyone in the process more effectively. If you live in Eastern Missouri, visit our website, send an e-mail or give us a call (314) 781-3400. Our website: STLBankruptcy.com
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