A married couple doesn’t have to file bankruptcy together. One spouse can file without the other. It’s like taxes. A married couple can choose married filing jointly or married filing separately. The difference is, with taxes one spouse doesn’t have the option of not filing at all, whereas in bankruptcy, one spouse can file and the other need not.
When it comes to completing the bankruptcy questionnaire that most bankruptcy lawyers ask clients to complete, there are a few questions where a non-filing spouse’s income must be disclosed. The question often arises, why is his income necessary if I’m the only one filing and we’re separated? Additionally, many non-filing spouses resent this intrusion into their financial affairs when they aren’t the party filing bankruptcy.
The answer depends on what is meant by “separated.” This term means many things to different people. To some it means the parties have physically separated — one has left the marital home and is living elsewhere. To some it means hubby is sleeping in the basement. To some it means they’re in the process of getting a divorce but still living together.
If the parties don’t maintain separate households, the non-filing spouse’s income has to be included in the filer’s statements and Means Test. This is because as long as there is only one “economic unit” (one household) the non-filing spouse’s income is, at least theoretically, available to pay the debts. The non-filer is making use of the house, so presumably he or she is contributing to the mortgage payment or rent. Likewise, with utilities, food, childcare, and other household expenses. If only the filing spouse’s income was shown but the full household expenses were listed, there would not be a true picture of the debtor’s financial situation.
If the parties are actually living apart then the non-filing spouse’s income is not part of the household income available to the filer and doesn’t have to be included in Schedule I or the Means Test. However, if the filer is receiving temporary support, that support payment must be included as part of her Schedule I income and on the Means Test.
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