 Dear Bankruptcy Adviser,
Can one spouse file for bankruptcy and not the other?
-- Kim
 Dear
Kim,
I have three answers to your question. The first answer, and the simplest, is yes, one spouse can file without the other.
However, this is a very difficult
question. Whether to file alone or jointly with
your spouse depends on some of the following factors:
your local bankruptcy jurisdiction, family law
issues, the condition of your marriage, the nature
of the debts, the source of your income and other
miscellaneous issues.
The second answer is that while you may be able to file an individual petition, if your spouse has his name on any of the accounts you are attempting to eliminate in bankruptcy and you do not live in a community property state, your spouse may still be responsible for your debt.
This will depend on the status of
your marriage, meaning, are you separated or divorced?
However, even this answer is dependent on other
factors like whether both spouses are signers
on the credit card agreements.
The third answer is a rewording
of your question. Instead of asking: "Can
you file an individual petition for bankruptcy?"
Ask: "When is it to my advantage to file
an individual petition?"
Here is an example of the right and wrong way to file bankruptcy without your spouse:
Suppose you and your spouse are
behind on your mortgage, but in the next few months
you expect to have some money coming in from a
new job, a loan or the sale of another property.
As a delaying tactic, one spouse
files a Chapter 13 bankruptcy before the house
is to be sold in foreclosure. This will constitute
"bad faith" because you did not have
the intention of paying the mortgage, only to
delay the foreclosure. All you've managed to do
is delay the sale of your home by a month or two.
But you have also risked being prevented from
refiling another bankruptcy when the judge assigned
to your case restricts your right to refile for
six months.
However, if you truly believed at
the time of filing that you were able to afford
the mortgage, but this belief was dependent on
certain future events that did not occur, then
you may not have filed a bad faith petition and
you might be able to refile another Chapter 13
bankruptcy.
The spouse that filed the original
Chapter 13 may not be allowed to refile another
bankruptcy because the judge might prohibit that
person from filing for another six months. But
the nonfiling spouse can now file his or her own
individual bankruptcy. Now you're going to get
an additional month or two grace period, and that
may be just enough time to make your monthly mortgage
payment and the Chapter 13 payments.
Kim, these circumstances may seem unusual but they are common issues where a married person might consider filing an individual petition. I suggest that you consult with an expert to determine how the local bankruptcy procedures in your state can best be used to your advantage.
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