Can Spouses File Bankruptcy Separately?

filing for bankruptcy

If you and your spouse are contemplating filing for bankruptcy, you may wonder if you are required to file jointly. Married couples can, in fact, file separately. When filing for bankruptcy in Jacksonville, married couples have the following options when choosing to file for Chapter 7 or Chapter 13:

  • One spouse files individually
  • Both spouses file individually

Types of bankruptcy spouses can file

Chapter 7 bankruptcy allows for a liquidation of the debtor’s nonexempt property to pay off creditors. There are special requirements that must be met. Chapter 7 is typically preferred by debtors who are still current with their secured payments such as their mortgage and car loan but are overwhelmed with unsecured debts like credit cards or medical bills.

Chapter 13, also called a wage earner’s plan, provides for the adjustment of debts for an individual with a regular income. It enables them to develop a plan to repay all or part of their debt over a defined period of 3-5 years. Under Chapter 13, if mortgage payments remain current, the petitioner will not lose their home.

Submitting financial information

Whether you choose to file for bankruptcy in Jacksonville individually or jointly, both spouses must submit their financial information. Many couples think that they will more easily qualify for Chapter 7 when filing separately, but that is not the case. The person filing must complete information for the court regarding their assets, debt, income, and expenses for the household—including for their spouse. The exception is if you are separated or living in separate households.

Filing for bankruptcy jointly

Since every couple’s debt and financial details are unique, it’s important to consult with a bankruptcy attorney in Jacksonville to determine which course of action is best for your situation. Filing for bankruptcy jointly may be the right decision for you if the following apply to you:

  • Your debt is shared. If your debt is owned together and you file for bankruptcy jointly, you will both be eligible to have that debt discharged.
  • Time and expense are a concern. Filing jointly can save money by cutting down on fees and other expenses, and it can also save time because you are combining two cases in one proceeding.

Filing for bankruptcy individually

If the majority of debt is owned individually, filing separately may be the better option. It may also be the right choice if:

  • You want to preserve one spouse’s credit rating. Since filing for bankruptcy in Jacksonville will cause an individual’s credit score to drop, filing separately may be the better option so that one spouse’s credit is preserved.
  • Your combined assets exceed the bankruptcy exemptions. In Florida, property acquired during a marriage is often NOT property of a bankruptcy estate. So, even if a couple has household furnishings worth tens of thousands of dollars, those assets are not property of a bankruptcy estate if only one spouse files and if the couple acquired those assets after they married.

If you’re married and considering filing for bankruptcy in Jacksonville, contact the attorneys at Parker & DuFresne today to learn more about which option best suits your needs.

 

Sources:
http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics
http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-13-bankruptcy-basics