Married and Filing a Joint Chapter 7 Petition
When it comes to filing for bankruptcy, most married couples opt for a joint Chapter 7 case. This is because there are several advantages to filing jointly, such as:
- It is less expensive since you only have to pay one fee for your bankruptcy attorney, court filing, and bankruptcy courses
- You can discharge joint debts and individual debts simultaneously
- It is more efficient as you only have to sign one set of bankruptcy schedules and attend hearings together
- You can maximize bankruptcy exemptions to protect assets from the trustee
However, there are circumstances where filing an individual Chapter 7 case may be more beneficial. For instance, if a spouse has very little debt, filing for bankruptcy may not be advantageous. Additionally, if a spouse has already filed for bankruptcy in the past, they may not be eligible for another bankruptcy discharge at present. In some cases, income considerations could also be a concern if the couple files a joint Chapter 7.
The Basic of Filing Chapter 7 as a Married Couple
When you and your spouse file a joint Chapter 7 case, you must include all household income and expenses when calculating the Means Test. This means that you need to include both your income and your spouse's income to determine the average monthly income and median monthly income for your household.
The Chapter 7 Means Test is used to determine if you qualify for a Chapter 7 bankruptcy discharge based on your income and household size. If your household income is above the median income for your state, you may not be eligible to file Chapter 7. However, you may still qualify if your disposable income is negative or very low after deducting allowable monthly expenses from your average monthly income.
If you are filing an individual Chapter 7 bankruptcy case, you still need to include your spouse's income if you live in the same household. This could make you ineligible for Chapter 7 if your combined income is above the median income for your state.
However, when you complete the second part of the Means Test, you can include a marital adjustment deduction for your non-filing spouse. This deduction includes personal expenses that your spouse pays from their income that are not considered household expenses. Examples of these expenses include credit cards in their name only, child support, student loan payments, and alimony.
Pros and Cons of Filing Married
There are many pros and cons to filing jointly with a spouse.
Pros:
- Cost and time savings
- Getting rid of all the debts at once
- Maximizing exemptions
Cons
- You must qualify for Chapter 7 which may be harder to do as a couple
- Both are hit with a credit impact rather than just one person
How does filing bankruptcy while separated affect the Means Test and other bankruptcy matters? This is an important question to consider.
Filing Bankruptcy While Separated From Your Spouse
If you and your partner are separated and considering filing for bankruptcy, you have two options: filing jointly or individually. While a joint Chapter 7 petition may provide some advantages, there are cases where filing separately could lead to a better outcome.
It is possible to file for Chapter 7 bankruptcy with or without your spouse, regardless of whether you are living together or separated. However, you cannot file a joint petition without your spouse's consent. On the other hand, if you have legally separated or moved out of your shared home, you are free to file for individual bankruptcy.
It's important to weigh the benefits and drawbacks of each option and consult with a bankruptcy attorney to determine the best course of action for your specific situation.
Do I Count My Spouse’s Income for the Means Test if We Are Separated?
When filing for Chapter 7 bankruptcy, a separation can significantly impact the calculation of the Means Test. Whether or not you include your spouse's income on the Means Test depends on a few factors.
If you are married and filing a joint Chapter 7, there are two scenarios:
- If you are living separately, you should include the income for both spouses on the Means Test, along with the expenses for each household.
- If you are living together, you should include the income for both spouses on the Means Test, along with the expenses for your household.
However, if you are married but filing an individual Chapter 7 while separated, here's what you should do:
- If you are living in a separate household, you should not include your non-filing spouse's income on your Means Test. Similarly, you cannot include your non-filing spouse's expenses on your Means Test.
- If you are separated but living in the same home, you should include your non-filing spouse's income on your Means Test. You should also complete the marital adjustment by deducting your spouse's expenses that they pay solely from their income.
If you are filing for bankruptcy while separated and maintaining separate households, you may have a better chance of qualifying for Chapter 7. While it is possible to file for bankruptcy without a lawyer, filing while separated can complicate the proceedings. Therefore, it's always best to seek legal advice from an experienced Chapter 7 bankruptcy lawyer before filing.
You can schedule a free bankruptcy consultation with a bankruptcy lawyer near you using our free Bankruptcy Attorney Fee and Qualification Calculator.
How Does Filing Bankruptcy While Separated Impact My Spouse?
Filing for individual bankruptcy should not affect your spouse's credit rating. However, if you have joint debt, filing for Chapter 7 bankruptcy can have consequences for your spouse.
When you discharge your legal liability for a joint debt through Chapter 7, the creditor will look to the co-signer, which in this case is your spouse, for payment. For instance, if you have a joint credit card debt of $10,000 with your spouse and file for Chapter 7, your legal responsibility for the credit card debt will be eliminated after the bankruptcy discharge.
However, since your spouse co-signed the credit card, the credit card company will demand payment from your spouse. As a result, your spouse will be responsible for the entire debt.
It is important to note that a bankruptcy discharge does not necessarily free you from debts that a family court orders you to pay during a divorce action. Therefore, if you are struggling with debts that you cannot pay and are separated from your spouse, the best way to protect yourself is to seek the advice of a bankruptcy attorney and a divorce lawyer.
Are There Other Ways to Get Out of Debt Without Filing for Bankruptcy?
If you're struggling with debt, bankruptcy could be an affordable option for debt relief. However, it's important to note that there may be other options that could be more advantageous based on your specific situation.
There is a range of debt relief options to help you get back on track. Options include debt settlement, Chapter 13, debt management, and debt payoff planning.
Debt management is a program in which the firm will negotiate the interest rates, allowing you to pay on the principal. This can be helpful if you can afford your debt but feel like you aren’t making a dent into it, and so it will allow you to pay more off over three to five years. Dive into this option more and decide if it is right for you!
We'll work with you to create a personalized plan that meets your unique needs and helps you get out of debt.
