If you are married you can file a bankruptcy without your spouse. The difficult question is whether it is advisable to do so. There are a few clear-cut situations where there is no reason not to file without your spouse. For instance, if all your debts were incurred before you were married, or if you are legally separated and have divided your property and taken care of all the financial considerations, there may be no reason not to file alone.
But in most situations, the issue is a complicated one. Whether it is advisable to file without your spouse depends first of all upon whether you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) or a common law state (all the others). Regardless of which kind of property law your state has, ownership and liability laws vary significantly from state to state, and it is essential to get advice from an experienced attorney in your area before you decide whether or not to file without your spouse. The answer also depends on whether you have joint debts; whether your state has a “family expense” law that makes one spouse responsible for the debts of another if the debts were incurred for family purposes; your spouse’s income and your combined household income; and whether you intend to file under Chapter 7 or Chapter 13.
Community property states
If you file without your spouse and you live in a community property state, the community property of you and your spouse becomes property of the bankruptcy estate subject to the claims of creditors. The separate property of your non-filing spouse (e.g., property acquired by the non-filing spouse before the marriage, during the marriage by gift, or by inheritance) is not affected by your bankruptcy. Your separate property, if any, is used to pay debts first, and then the non-exempt community property is used.
In community property states it is possible for both spouses to be liable for debts incurred by one spouse without the signature or approval of the other. When this is the case, your non-filing spouse may remain liable, at least theoretically, for payment of a debt even after you have discharged it in bankruptcy. But as a practical matter, the debt will be uncollectable so long as you are both alive and remain married to each other. This is because the assets of the non-filing spouse which might be subject to payment of the debt are usually community property, and community property is protected from the claims of creditors by your bankruptcy discharge. A creditor with a claim against the non-filing spouse can only collect its debt from the separate property, if any, of the non-filing spouse.
Common law states
In common law states, whether the property of the bankruptcy estate will include any property in which your spouse has an interest depends on the particular property laws of your state. In common law states your spouse sometimes is not responsible for the debts you discharge in bankruptcy if he or she did not sign a contract or otherwise agree to pay. Many common law states, however, have “family expense” laws that make one spouse responsible for the debts of the other if the debts were incurred for family purposes. The theory is that both spouses owe duties to support immediate family members; therefore clothing, rent, medical bills, and household items are the responsibility of both.
In common law property states, if you and your spouse are jointly liable to a creditor, your bankruptcy will not relieve your non-filing spouse from liability for the debt, and when you file the creditor may look to your non-filing spouse for payment. However, if you file under Chapter 13, the automatic stay will protect your non-filing spouse from collection actions provided that the debts are consumer debts scheduled to be paid at 100% under the plan.
Credit issues
If you have joint debts, your bankruptcy may be noted in some way on the credit record of your non-filing spouse, although there is some uncertainty about the propriety of this. However, if you have no joint debts, your bankruptcy should not appear in your non-filing spouse’s credit file. Even if your bankruptcy does not appear on the credit record of your spouse, it will have some effect on his or her credit-worthiness if you apply jointly for a loan in the future.
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