Can I File Bankruptcy Without My Spouse?

May 20, 2019Chapter 7 Bankruptcy

Sometimes, a person enters into a marriage with their own debts, and soon realizes that those debts are unmanageable. A common question then becomes: can I file a chapter 7 bankruptcy without involving my spouse? The answer is yes, but with some considerations.

You can file an individual Chapter 7 bankruptcy on your own without your spouse being listed as a co-debtor. The bankruptcy stay and order of discharge will not affect your spouse’s creditors rights to collect against them. All property that you own together must be disclosed as your own property, and any income your spouse earns must be listed as income.

Idaho is a community property state, meaning with few exceptions all income and property that you and your spouse accrue while married are “community property,” being equally owned by you and your spouse. Hand in hand with “community property” is what is colloquially referred to as “community debt.” Consumer debt accrued by you is simultaneously accrued by your spouse and vice versa. This means that most consumer debt you accrue while married is also equally owed by the spouse, and a bankruptcy discharge only affects your creditors’ ability to sue you on the debt. This means that a bankruptcy discharge granted to you would not prevent a creditor from attempting to collect against your non-filing spouse on a community debt.

Other considerations include a decrease in allowable exemptions. For example, in Idaho an individual is allowed to protect up to $7,000 in their vehicle. If a married couple files together, they may both claim that $7,000 each on two vehicles. If one spouse is filing without the other, they are only allowed one exemption, which can get a bit hairy if the community owns two vehicles.

Filing a chapter 7 bankruptcy without your spouse is commonly a viable option, and sometimes the best option. If you are currently married and considering a bankruptcy without your spouse as a joint-debtor, I would be glad to speak with you about your unique circumstances.

Chris Williams

Chris Williams

Attorney

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