Can a Married Person File Bankruptcy Without Spouse?

Bankruptcy offers a legal pathway for individuals to manage overwhelming debt and achieve a fresh financial start. This formal process, overseen by federal courts, allows a debtor to eliminate certain debts or establish a repayment plan. A married individual can file for bankruptcy independently, without their spouse. This decision involves important financial and legal considerations for both the filing and non-filing spouse.

Considerations for Individual Filing

Filing for bankruptcy individually while married is legally permissible. This option is often chosen to protect the non-filing spouse’s credit history from the direct impact of a bankruptcy filing. It can also be a strategic move when only one spouse has accumulated significant debt, or when spouses maintain largely separate financial affairs.

The means test for Chapter 7 bankruptcy considers the household’s total income, even if only one spouse files. This test compares combined household income to the median income for a household of the same size in the filing spouse’s state. Deductions for reasonable and necessary living expenses, including those of the non-filing spouse and dependents, are applied to determine disposable income. If the remaining disposable income is below a certain threshold, the individual may qualify for Chapter 7.

When one spouse files for bankruptcy, their liability for joint debts is discharged. However, the non-filing spouse remains fully responsible for the outstanding balance of these shared obligations. Creditors can pursue the non-filing spouse for the full debt, even if the filing spouse’s portion is eliminated. This often leads to the non-filing spouse needing to negotiate new payment terms or face collection actions.

Property treatment in an individual bankruptcy depends on its classification: separate property, jointly owned property, or community property. Separate property, owned solely by the filing spouse, becomes part of the bankruptcy estate and is subject to creditors’ claims, unless protected by exemptions. Jointly owned property, such as a home held as tenants by the entirety in some states, may be protected depending on state law and whether both spouses are liable for the debt. In community property states, all assets acquired during the marriage are generally considered community property and are part of the bankruptcy estate, even if only one spouse files.

Bankruptcy exemptions allow a debtor to protect certain assets from liquidation. These exemptions can be federal or state-specific, and the filing spouse typically chooses one set. Exemptions apply to the filing spouse’s separate property and their interest in jointly owned or community property. The non-filing spouse is generally aware of the bankruptcy filing, especially if joint debts or shared assets are involved. The bankruptcy court often requires the filing spouse to disclose the non-filing spouse’s income and assets for accurate schedules, even if their property is not part of the bankruptcy estate.

Preparing for Individual Bankruptcy Filing

Thorough preparation is important before a married individual files for bankruptcy without their spouse, beginning with the meticulous gathering of financial documents. The court requires recent pay stubs for the 60 days preceding the filing to verify income. Tax returns for the past two to four years are necessary to assess financial history. Bank statements and investment/retirement account statements for six months to a year help confirm asset values and transaction history.

Comprehensive information on all debts is another critical component. This includes creditor names, account numbers, and outstanding balances for all individual and joint debts. Loan documents, credit card statements, and collection notices provide details for accurately listing liabilities on the bankruptcy schedules. Distinguishing between debts solely owed by the filing spouse and those shared with the non-filing spouse is crucial for proper treatment.

All assets must be listed, with estimated values for each item. This includes real estate, vehicles, bank accounts, investments, household goods, and personal belongings. Assets must be categorized as individually owned, jointly owned, or community property, as this impacts how they are handled within the bankruptcy estate. Accurate valuation is important because it affects which assets may be protected by exemptions or liquidated by a trustee.

Detailed information about both spouses’ income and household expenses is required for the means test and for completing Schedule I and Schedule J. This includes all sources of income, such as wages, self-employment income, benefits, and any contributions from the non-filing spouse. An accounting of monthly living expenses, including housing, utilities, food, transportation, and healthcare, provides a complete financial picture for the court.

Before filing, federal law mandates completing a pre-bankruptcy credit counseling course from an approved agency. This course provides information on managing money and exploring alternatives to bankruptcy. Upon completion, the agency issues a certificate, which must be filed with the bankruptcy petition. A list of approved agencies is available on the U.S. Trustee Program website.

Finally, various official bankruptcy forms must be completed. These include:
Schedules A/B (Assets)
Schedule C (Property Claimed as Exempt)
Schedule D (Creditors Who Hold Claims Secured by Property)
Schedules E/F (Creditors Who Have Unsecured Claims)
Schedule G (Executory Contracts and Unexpired Leases)
Schedule H (Codebtors)
Schedule I (Current Income)
Schedule J (Current Expenditures)

The Statement of Financial Affairs provides a history of the debtor’s financial transactions, and Means Test forms calculate Chapter 7 eligibility. These forms are available on the U.S. Courts website, and careful completion is necessary.

The Individual Bankruptcy Process

Once all necessary information is gathered and forms completed, the process begins by filing the bankruptcy petition and schedules with the court. This submission can be done in person, by mail, or electronically through an attorney. The filing date establishes the “date of petition,” which impacts aspects like look-back periods for certain transactions.

Upon filing, an automatic stay immediately goes into effect, providing the debtor protection. This legal injunction temporarily halts most collection activities against the filing spouse, including lawsuits, wage garnishments, repossessions, and foreclosure actions. Creditors are prohibited from contacting the debtor or attempting to collect debts covered by the bankruptcy filing while the stay is in place.

Approximately 20 to 40 days after filing, the debtor must attend a mandatory Meeting of Creditors, also known as the 341 Meeting. This meeting is held by the bankruptcy trustee, who reviews the debtor’s petition and schedules under oath. The debtor must answer questions about their assets, debts, income, and expenses. Creditors rarely attend unless there is a specific concern about fraud or asset valuation.

A second mandatory requirement is completing a post-filing debtor education course, distinct from the pre-filing credit counseling. This course must be completed after the bankruptcy case is filed but before debts can be discharged. It must be taken from an approved provider, and a certificate of completion must be submitted to the court.

The goal for individual bankruptcy filers is the discharge of debts, which typically occurs after the Meeting of Creditors in a Chapter 7 case. A discharge order releases the filing spouse from personal liability for most unsecured debts, such as credit card balances, medical bills, and personal loans. This means creditors can no longer pursue the filing spouse for payment of these discharged debts.

An individual bankruptcy filing does not appear on the non-filing spouse’s credit report. The bankruptcy itself is tied to the filing spouse’s Social Security number. However, if the non-filing spouse co-signed any discharged debts, those accounts will reflect a derogatory status on their report, as they remain responsible. The non-filing spouse’s credit score may be indirectly affected if joint accounts are closed or become delinquent.