If you are married, you can file for bankruptcy even if your spouse does not. One-spouse filings are more common than you might expect, especially for recently married couples when one spouse or the other has an unmanageable amount of debt. Often, one spouse filing alone makes sense because a one spouse filing can protect the other spouse’s credit score and make recovering from bankruptcy faster and easier for the filing spouse. Although one spouse can file alone, the other spouse’s income and assets will likely have to be included in the bankruptcy case. For example, if the spouse filing bankruptcy is a stay-at-home parent but the other spouse has a significant income it is not reasonable that the non-working spouse could eliminate his or her debts when the couple clearly has he ability to repay at least some of the debts.
Similarly, your marriage may make you entitled to a percentage of your spouse’s assets and such assets will be of interest to the bankruptcy court and to your creditors. This is particularly true if you live in a community property state where most property acquired during marriage is presumed to be owned jointly by both spouses. Even if you do not live in a community property state, you must be very careful to properly disclose the assets of the marriage simply keeping an asset in the name of one spouse only does not mean that it is not an asset of the marriage or protect the asset from creditors in bankruptcy. If you are married and considering bankruptcy, keep in mind that a one spouse bankruptcy can be somewhat complicated and present a number of tricky legal issues so a consultation with a bankruptcy attorney is absolutely essential in order to protect yourself.
By: Bryan L. Cook