In Bankruptcy Information, Bankruptcy Questions

Sometimes only one spouse has the bulk of the debt. Perhaps a business owned by one spouse failed and that spouse wants to file bankruptcy, but for whatever reason, the other spouse doesn’t want to file. Can only one spouse file? The answer is yes, either spouse can file bankruptcy without the other. Just as with taxes, it’s called “married, filing separately”

What debts are listed?
In a “married, filing separately” case, only the debts of the filing spouse are listed. If some debts, such as a car loan or credit card, are solely in the name of the non-filing spouse, those debts are not listed on the filing spouse’s schedules. However, joint debts are listed. These include joint credit cards, mortgage or car loans where both spouses have filed, or any debt for which one spouse signed for the other. If the debt is dischargeable, any joint debts will be discharged as to the filing spouse but not as to the non-filing spouse. That means the non-filing spouse remains liable for the debt after the bankruptcy.

What assets are listed?
Just as with debts, only assets owned by the filing spouse or jointly owned by both spouses are listed. In the case of jointly owned assets, the value of the filing spouse’s interest must be shown, not the value of the entire asset. Usually, this means dividing the value of the asset in half and assigning the half value as the value to the filing spouse. The asset will be shown as jointly owned. Sometimes, the document by which the married parties took title to the property shows a different allocation than 50% to each. In such as case, whatever portion of the property is assigned to the filing spouse is the portion that is valued and shown on the schedules.

Income.
Treatment of income for “married, filing separately” debtors is a little different. If the parties are in the same house, Schedule I, Statement of Income, must list both the filing and non-filing spouses’ income. This is because Schedule J, Statement of Expenses, lists the expenses for the entire household, not just the filing spouse. Showing only part of the income on Schedule I but all of the expenses on Schedule J would not give a clear picture of the debtor’s current financial situation.

Similarly, on Form 122, Statement of Current Monthly Income, the non-filing spouse’s income must be shown for the preceding six months. Once again, this is to give a complete picture of the household’s calculated annual income. However, on Form 122 there is a box to check to indicate that the debtor is married but filing separately. This excludes the spouse’s income from the calculations under the Means Test.

Married but separated.
If the parties are still legally married but maintain separate households, then the non-filing spouse’s income does not have to be shown on Schedule I or Form 122. This is because the non-filing spouse’s income is not used to maintain the household in which the debtor lives. If the non-filing spouse is paying temporary support or maintenance to the filing spouse, that income must be shown on Schedule I.

“Married, filing separately” cases can be tricky. If you have bankruptcy questions, please contact us here or call or text (801) 413-3708; or email steve@schamberslaw.com.

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