If I Am Married, Can I File Bankruptcy By Myself?

by Susanne Robicsek, North Carolina Bankruptcy Attorney

January 29, 2007

Bankruptcy can be filed jointly as one case if you are married but it doesn’t have to be.    I often am asked the following question:  “If I am married, can I file bankruptcy by myself, without my spouse?

The simple answer is yes you are allowed to file bankruptcy without your spouse, but it may not be effective and may even be advised against.

When I am  asked this question, I often find a couple who think if only one person files, there will be some advantage, typically that they can preserve the credit of the other.    If you are married, you need to understand all the implications of one spouse filing a bankruptcy case.

You have to determine three things:

1) what benefits you get from filing bankruptcy without your spouse
2) what disadvantages there are if your spouse doesn’t file

3) what additional benefits are gained by a joint bankruptcy filing

1) Benefit of solo filing:  If you file without your husband or wife, only your liability for debts are discharged.  If eliminating your debts (only) would solve your family’s problems, then it might be a good idea to file bankruptcy solo.

This would be effective if there are two people who each have debt in their name, but one has a good deal of debt while the other has just a little bit.

In the case of a Chapter 13 filed to stop a foreclosure, sometimes all it takes is one of them filing if both are on the loan/deed and may preserve the right of the other spouse to file at a later date.   The decision to file alone or together should be made on a case by case basis with your lawyer.

Note that in a community property state, this answer may be different. Kevin Gipson is a bankruptcy attorney in New Orleans LA and addressed this in his article on  bankruptcy filing in a community property state.

2) Disadvantages of solo filing:  Filing for one may not solve the family problems.   If the non-filing spouse is left with so much debt that the family budget is still in trouble, then bankruptcy won’t make life much better in the long run.

A solo bankruptcy may affect your spouse, especially if there are joint debts.  In some situations, there may be an affect though there may not be harm to the non-filing spouse.   In others, the benefits to one spouse filing outweigh any harm. But it is important to be aware of what will happen.

If there is joint debt, in non-community property states the other spouse still is responsible for the debt and in some cases, joint assets can be sold by the Chapter 7 bankruptcy trustee even though both spouses don’t file.

3) Additional benefits by joint filing:   The most important issue to determine if both spouses should file bankruptcy is that the entire family financial issue is resolved and a family is put as close to debt free as they can be.  Mortgages for property kept, car payments, student loans, taxes and other debts that survive bankruptcy need to be paid but most credit cards, general loans, medical debts, business guarantees, etc. are gone.

The advantage to joint filing is that theoretically, the family is just left with budgeting to cover their necessities.

A sad consideration is if a couple is headed for divorce, you usually fight over who has to pay the debts.  When divorcing, if both file for bankruptcy, you may eliminate this issue and concentrate on what is best for everyone involved, especially for the kids.

Some of the factors that need to be considered are:

  • whether you have joint assets
  • whether you have joint debts
  • how long you have been married
  • what type of debts you have
  • what state you live in (community property or not)

You can  file bankruptcy on your own but you may, or may not, want to do so. This will depend on your specific situation.  Ask an experienced  bankruptcy attorney what the best choice is for your family.

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Concentrating in Consumer Bankruptcy Law since 1988; Wake Forest Law School JD 1987 Law Office of Susanne M. Robicsek since 1993, Law Clerk to Judge Rufus Reynolds, US Bankruptcy Judge for Middle District of NC; Burns Price & Arneke, PA, David Badger and Associates, PA.

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Last modified: November 8, 2011